UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


'if. 


MEDICAL  JURISPRUDENCE 


A  STATEMENT  OF  THE  LAW 

OF 

FORENSIC  MEDICINE 


BY 

ELMER  D.   BROTHERS,  B.S.,  LL.B. 

»» 

Member  of  the  Chicago   Bar;    Lecturer   on   Jurisprudence  in   the 

Medical  and  Dental  Departments  of  the  University  of 

Illinois,  and  in  John  Marshall  Law  School 


ST.   LOUIS 

C.   V.   MOSBY    CO. 

1914 


T 


COPYRIGHT,  1914,  BY  C.  V.  MOSBY  COMPANY 


A  -  3  '6 


Press  of 

O.  V.  Mosby  Company 
St.  Louis 


PREFACE 

For  the  last  twenty  years,  the  writer  has  been  delivering 
a  course  of  lectures  on  the  subjects  involved  in  this  pro- 
duction, but  during  that  time  he  has  not  been  able  to  find  a 
satisfactory  text  on  the  legal  phase  of  the  subject  for  rec- 
ommendation to  medical  students.  The  medical  features 
have  been  thoroughly  discussed  by  many  writers.  What- 
ever the  merit  of  this  effort  in  supplying  the  desideratum, 
it  embodies  a  brief  explanation  of  those  phases  of  the  sub- 
ject which  he  found  most  interesting  and  instructive  to  the 
student.  No  effort  has  been  made  to  exhaust  the  subject 
but  rather  to  abridge  and  condense  wherever  possible  with- 
out sacrifice  to  completeness  of  exposition  and  accuracy  in 
elucidation  of  fundamental  principles. 

Liberal  reference  has  been  made  to  the  authorities  sus- 
taining or  justifying  the  propositions  set  forth  and,  while 
seldom  quoting  from  decisions,  the  writer,  wherever  ex- 
pedient and  appropriate,  has  not  hesitated  to  adopt  the 
language  of  the  courts  in  announcing  and  illustrating 
principles.  References  on  important  subjects  are  made  to 
annotated  cases  where  the  student  will  find  fuller  illustra- 
tions of  the  application  of  the  law  to  facts  in  adjudicated 
cases,  the  reference  to  L.R.A.  being  to  the  new  series  unless 
otherwise  indicated,  and  to  American  and  English  An- 
notated Cases,  being  as  A.C. 

Medical  subjects  are  not  discussed  except  where  consid- 
ered necessary  to  an  exposition  of  the  legal  subjects  or  to 
illustrate  the  application  of  the  legal  principles  announced. 

ELMER  D.  BROTHERS. 


CONTENTS. 

CHAPTER  I. 
INTRODUCTION. 

Law. —  Municipal  Law. —  Criminal  Law. —  Civil  Law. — 
Criminal  Action  and  Civil  Suit. —  Substantive  Law. 

—  Administrative  Law. —  Development  of  Medical  Sci- 
ence.—  The  Physician  and  the  Courts. —  Definition  of 
Medical  Jurisprudence 17-26 

CHAPTER  II. 
COUETS  AND  PROCEDURE. 

Courts. —  Jurisdiction. —  Notice. —  Procedure. —  Trial. — 

Trial  by  Ordeal.— Jury 27-31 

CHAPTER  III. 
EVIDENCE. 

Definition. —  Testimony. —  Witness. —  Oath  or  Affirmation. 

—  Competency    of    Evidence. —  Rules. —  Subjects    of 
Testimony 32-38 

CHAPTER  IV. 
EXPERT  WITNESS. 

Definition. —  Preliminary  Inquiry  as  to  Qualifications. — 
Conduct. —  Basis  of  Opinion. —  Confined  to  Special 
Knowledge. —  Physicians  as  Experts. —  Subjects  of 
Inquiry. —  Hypothetical  Question. —  Objective  and 
Subjective  Symptoms. —  Cross-Examination  of  Ex- 
pert.—  Medical  Books 39^45 

CHAPTER  V. 
HEARSAY. 

Dying  Declarations. —  Res  Gestae. —  Adverse  Statements  in 
the  Presence  of  a  Party. —  Statements  against  Inter- 
est.—  Statements  by  Patient  to  Physician  ....  46-54 


CONTENTS. 

CHAPTER  VI. 
PRIVILEGED  COMMUNICATIONS. 

Admissibility  of  Adverse  Statements. —  Confidential  Com- 
munications.—  Incidental  Information. —  Patient  Need 
Not  be  Party  to  Suit. —  Statement  by  Physician  to 
Patient. —  Publishing  Operation. —  Imposing  on  Pri- 
vacy.—  Waiver  of  Privilege. —  Privilege  is  an  En- 
tirety.—  Autopsy. —  Duty  of  the  Physician. —  The 
Privilege  is  Not  to  Protect  Criminals. —  Criminal  Pur- 
poses.—  Presumption  of  Good  Faith 55-62 

CHAPTER  VII. 
LICENSE. 

Common  Law  Right  to  Practice  Medicine. —  Liberty  to 
Pursue  Calling. —  Professional  Practice  is  Not  Prop- 
erty.—  Public  Welfare. —  Right  of  State  to  Control. — 
Soliciting  Patients. —  Itinerant  Vendors  of  Medicines. 

—  Itinerant  Physicians. —  How  Regulated. —  Require- 
ments.—  Construction  of  License  Statutes. —  Practic- 
ing Without  License. —  Practicing  Medicine. —  Right 
of  Physician  to  Practice  Dentistry. —  Exemption  of 
Resident  Practitioners. —  Board  Cannot  Delegate  Dis- 
cretion.—  Reserved  Right  of  State. —  Vested  Rights. 

—  Due  Process  of  Law. —  The  Law  of  the  Land. — 
Revocation  Not  a  Judicial  Function. —  Grounds  for 
Revoking. —  Proceedings  to  Revoke. —  Effect  of  Deci- 
sion  by   Board. —  Statutes   of   Limitation. —  Revoca- 
tion and  Criminal  Prosecution 63-79 

CHAPTER  VIII. 
CONTRACTUAL  RELATIONS. 

General  Observations.  —  Contract.  —  Delivery.  —  Other 
Classes. —  Mutuality. —  Parties. —  Contracts  by  In- 
fants.—  Persons  Under  Legal  Disability. —  Considera- 
tion.—  Effect  of  Signing  Contract. —  Validity  of 
Contracts. —  Constitutional  Right  to  Contract. — 
Guaranty. —  Receipt. —  Release 80-90 

CHAPTER  IX. 
EMPLOYMENT  AND  COMPENSATION. 

Accepting  Service. —  Unconscious  Patient. —  Employment 
by  Third  Person. —  History. —  Agreement  as  to  Fee. 


CONTENTS. 

—  No  Agreement  as  to  Fee. —  Special  Agreement  as 
to  Result. —  Services  During  Life  of  Patient. —  Fre- 
quency of  Visits. —  Value  of  Services  is  a  Question  of 
Fact. —  What  May  be  Shown. —  What  May  Not  be 
Shown. —  License  Presumed. —  Unlicensed  Practition- 
ers.—  Nature  of  Remedies  Must  be  Disclosed  if 
Sought. —  What  Physician  Must  Prove. —  Husband 
and  Wife. —  Parent  and  Child. —  Guardian  and 
Ward. —  Malpractice. —  Consultant. —  Witness  Fees. — 
Expert  Witness  Fees 91-108 

CHAPTER  X. 
AGREEMENT  FOR  SURGICAL  OPERATION. 

Elements  of  the  Agreement. —  Nature  of  Agreement. — 
Surgeon 's  Discretion. —  Consent  Necessary. —  Form 
of  Action.  —  Presumptions.  —  Controlling  Facts. — 
Emergency. —  More  than  One  Method  Affecting  the 
Patient  Differently. —  Patient's  Conclusion  Para- 
mount.—  Operating  at  Patient's  Request. —  Good 
Faith  of  Operator. —  Departure  from  Agreed  Opera- 
tion.—  Prohibited  Act,  or  Operation. —  Damages  for 
Unauthorized  Operation 109-123 

CHAPTER  XI. 
RES  IPSA  LOQUITUR. 

The  Maxim. —  Basis  of  the  Maxim. —  Presumptions. — 
Presumption  Upon  Presumption. —  Mental  Convic- 
tions.—  Application  of  the  Maxim. —  The  Reason  for 
the  Rule. —  When  Maxim  is  Applicable. —  History 
and  Illustrations. —  Effect  from  More  than  One 
Cause. —  As  Applied  to  Physicians  and  Surgeons. — 
As  Applied  to  Dentists. —  Where  Not  Applicable. — 
Infection 124-131 

CHAPTER  XII. 
CIVIL  MALPRACTICE. 

Obligations  Imposed  by  Law. —  Implied  Conditions  of  the 
Relation. —  Public  Policy. —  Statement  of  the  Obliga- 
tions.—  Obligations  Measured  by  Liability. —  Re- 
quirement is  General. —  Skill. —  Care. —  Degree  of 
Care  Required. —  Judgment. —  Nature  of  Judgment 
Required. — Presumptions  of  Skill,  Care  and  Judg- 


CONTENTS. 

ment. —  Agreement  Waiving  These  Requirements. — 
Agreement  for  Special  Skill. —  Specialists. —  Practi- 
tioner Must  Keep  Pace  with  the  Times. —  Experimen- 
tation.—  Established  Treatment. —  Gratuitous  Serv- 
ices. —  Non-Professional  Volunteer.  —  Unlicensed 
Practitioner 132^147 

CHAPTER  XIII. 
CIVIL  MALPRACTICE. 

Elements  of  Breach. —  Essentials  of  Liability. —  Negli- 
gence.—  Intent. —  Good  Faith. —  Accident. —  Liabil- 
ity in  Case  of  Accident. —  Accident  and  Negligence. — 
Contributory  Negligence. —  Effect  of  Contributory 
Negligence. —  Reasons  for  the  Rule. —  Relation  Be- 
tween the  Physician's  and  the  Patient's  Negligence 
and  the  Patient 's  Injury. —  Independent  Services. — 
Nurse's  Negligence. —  Negligence  of  Druggist. —  Neg- 
ligence of  Assistant  or  Apprentice. —  Partners. —  Prac- 
titioner Not  a  Guarantor  of  Beneficial  Results. — 
Intoxication. —  Physician  Engaged  in  Other  Avoca- 
tions.—  Arbitrary  Refusal  to  Take  Case. —  Statutes 
Do  Not  Require  Licentiates  to  Practice. —  Civil  Rights 
Acts 148-159 

CHAPTER  XIV. 
CIVIL  MALPRACTICE. 

Enforcement  of  Liability. —  Proof  Necessary  to  Establish 
Malpractice. —  Anesthetic,  Refusal  to  Give. —  Mistake 
in  Diagnosis. —  Usual  Results  Not  the  Test  of  Duty. — 
How  Proven. —  Burden  of  Proof. —  Different  Schools 
of  Medicine. —  Failure  to  Present  Bill  No  Admission 
of  Wrong. —  Exhibiting  Injury. —  When  the  Relation 
Begins. —  When  the  Relation  Ends. —  What  Consti- 
tutes Malpractice,  Is  a  Question  of  Law  ....  160-170 

CHAPTER  XV. 
CIVIL  MALPRACTICE. 

Defenses. —  Proper  Treatment. —  Former  Judgment  for 
Physician. —  Injury  from  Other  Causes. —  One  Suit, 
One  Recovery. —  Mistake  by  Patient. —  Damages. — 
Kinds  of  Damages. —  Presumptions. —  Elements  of 
Damages. —  Patient's  Duty  to  Prevent  Aggravation 


CONTENTS. 

of  Injury. —  Mere  Contingencies. —  Cannot  Recover 
for  Original  Injury  or  Disease. —  Mitigation. —  Exces- 
sive Damages. —  Form  of  Action. —  Death  from  Mal- 
practice.—  Joint  Tort  Feasors. —  Joint  and  Several 
Actions. —  Survival  of  Action 171-181 

CHAPTER  XVI. 
CRIMINAL  MALPRACTICE. 

Definition. —  Negligence. —  Criminal  Liability. —  Abortion. 

—  Criminal  Abortion. —  At  Common  Law. —  Attempt 
to  Abort. —  Intent. —  Without  the  Woman's  Consent. 

—  Knowledge  of  Pregnancy. —  Pregnancy  Not  Nec- 
essary to  Attempt  to  Abort. —  Means   Employed. — 
Failure   to  Produce   Abortion. —  Advice   to   Procure 
Abortion. —  Proof    of    Pregnancy. —  Stage    of    Preg- 
nancy.—  Period  of  Pregnancy. —  Existence  of  Preg- 
nancy.—  Evidence. —  Statutes. —  Necessary    to     Save 
the  Mother's  Life. —  Distinction  Between  Civil  and 
Criminal  Malpractice 182-190 

CHAPTER  XVII. 
FALSE  REPRESENTATIONS. 

Fraud. —  Definition. —  Effect. —  Intent. —  Corrupt  Motive. 

—  Materiality. —  Opinions. —  Caveat    Emptor. —  Ac- 
tionable Misrepresentation. —  Peculiarity  of  the  Re- 
lation.—  Trust   and   Confidence. —  Confidential   Rela- 
tions  and    Special    Knowledge. —  False    Pretenses. — 
Fair  Dealing. —  False  Advertisements. —  As  to  Third 
Party. —  Illustrations  of  the  Principle. —  Illustration. 

—  Certainty  of  Proof. —  Elements  of  the  Tort. — 
Remedies. —  Damages 191-204 

CHAPTER  XVIII. 
ANESTHETICS. 

Definition. —  Kinds  of  Anesthetics. —  Effects  of  Anesthetic. 

—  Right  to  Administer. —  Selection  of  Anesthetic. — 
Duty  to  Administer  Anesthetic. —  Legal  Responsibil- 
ity in  Administering  Anesthetics. —  Extreme  Respon- 
sibility in  Fact. —  Value  of  Testimony 205-210 


CONTENTS. 

CHAPTER  XIX. 
INSANITY.— MENTAL  FACULTIES. 

Mental  Processes. —  Cerebral  Cortex. —  Classification. — 
Functional  Disturbances  and  Mental  Phenomena. — 
Progress  of  the  Law. —  Insanity  in  Law. —  Presenta- 
tion.—  Definition. —  Presumption  of  Sanity. —  Pre- 
sumption of  Continuity  of  Insanity. —  Evidence  as 
to  Insanity. —  General  Practitioner  is  an  Expert  on 
Insanity 211-216 

CHAPTER  XX. 
INSANITY.—  IN  CRIMINAL  LAW. 

Intent. —  At  Common  Law. —  Homicide. —  Tests. —  Sub- 
jects of  Inquiry. —  Insane  Delusion. —  Delirium  Tre- 
mens. —  Somnambulism  or  Somnambulentia. —  Drunk- 
enness.—  Epilepsy. —  Degree  of  Proof  Required. — 
Moral  Insanity. —  Irresistible  Impulse. —  Emotional 
Insanity. —  Kleptomania. —  Statute 217-223 

CHAPTER  XXI. 
INSANITY.— IN  CIVIL  LAW. 

Contracts. —  Validity. —  Purpose. —  Necessaries. —  Degree 
of  Insanity  Invalidating  Contracts. —  Marriage. — 
Delirium  Tremens. —  Drunkenness. —  Impaired  Fac- 
ulties.—  Wills. —  Mental  Capacity. —  Insane  Delusion. 
—  Undue  Influence. —  Sound  Mind  and  Memory. — 
Torts. —  Responsibility. —  Homicide. —  Damages  .  .  224-230 

CHAPTER  XXII. 
WOUNDS. 

Definition. —  Surgically. —  Character  of  Wounds. —  Cause 
of  Death  from  Wounds. —  Relation  of  Wound  to 
Death.  —  Shock.  —  Definition.  —  Symptoms.  —  Opin- 
ions of  Physicians 231-234 

CHAPTER  XXIII. 
BLOOD  STAINS. 

Definition  of  Blood. —  Classification. —  Origin. —  Color  of 
Blood. —  Weight,  or  Specific  Gravity. —  Quantity. — 


CONTENTS. 

Composition.  —  Coagulation.  —  Tests    for    Blood.  — 

Color  of  Blood  Stains 235-241 

CHAPTER  XXIV. 
CRIMES  WITH  MEDICAL  ASPECTS. 

Introduction. —  Rape. —  Definition. —  Age  of  Consent. — 
Punishment. —  Physical  Violence. —  Force. —  Previous 
Unchastity  of  the  Women. —  Signs. —  Poisoning. — 
Definition. —  Malice. —  Common  Law. —  Post-mortem. 
—  Infanticide. —  Definition. —  Duty  of  the  Mother. — 
Prevalence.  —  Intent.  —  Independent  Existence.  — 
Natural  Causes  of  Death. —  Identity  of  Mother. — 
Burden  of  Proof.—  Statutes 242-252 

CHAPTER  XXV. 
STATUTES  OF  LIMITATIONS. 

Policy  of  the  Law. —  When  Cause  Accrues. —  Malprac- 
tice Cases. —  Period  of  the  Statutes. —  Diligence. — 
Specified  Services. —  Knowledge  of  Injury. —  Latent 
Injuries. —  Continuing  Obligations. —  A  Continuing 
Wrong.—  Suit  for  Fee.—  Persons  Under  Disability  .  253-258 

CHAPTER  XXVI. 
MISCELLANEOUS. 

Business,  Contracts  and  Work  on  Sunday. —  Coroners. — 
Boards  of  Health. —  Medical  Services  Required  by 
Law. —  Malingerers. —  Contracts  in  Restraint  of  Pro- 
fessional Activity. —  Asexualization  and  Steriliza- 
tion.—  Vaccination. —  Charitable  Institutions. —  In- 
mates of  Public  Hospitals. —  Jury  Service. —  Libel 
and  Slander. —  Gifts  and  Legacies 259-276 

Index  .  .  277-301 


MEDICAL  JURISPRUDENCE 


CHAPTER  I. 

INTRODUCTION. 

Law. 

Definition. — In  its  broadest  sense,  Law  is  a  mode  of  exist- 
ence or  an  order  of  sequence.1  Law  exists  and  controls 
without  reference  to  our  knowledge.  There  is  a  limit  to 
human  ken,  a  boundary  to  effort  which,  like  rocks  in  the 
sea,  wash  but  slowly  away.  "  Canst  thou  by  searching  find 
out  God?  Canst  thou  find  out  the  Almighty  unto  perfec- 
tion? It  is  as  high  as  heaven;  what  canst  thou  do? 
Deeper  than  hell;  what  canst  thou  know?  The  measure 
thereof  is  longer  than  the  earth  and  broader  than  the  sea." 

Prevalence  of  Law. — Law  is  ubiquitous.  We  cannot  es- 
cape its  rule  nor  emancipate  ourselves  from  its  influence. 
It  follows  us  from  the  cradle  to  the  grave,  to  protect,  ad- 
monish, restrain,  compel.  It  anticipates  nativity  and 
guards  our  tongueless  silence  long  after  we  have  mouldered 
into  dreamless  dust.  The  attempts  to  explain  the  rights 
and  duties  of  men  in  society,  by  supposing  them  to  have  ad- 
vanced from  a  state  of  nature,  may  be  accounted  for  on  the 
ground  of  fiction  and  excused  on  the  score  of  entertainment, 
but  they  are  barren  of  any  practical  application  and  en- 
tirely destitute  of  any  useful  suggestion.  Society  was  not 
a  mutual  compact;  but  a  categorical  necessity. 

iWayland:  Moral  Science,  p.   25. 

17 


18  MEDICAL   JURISPRUDENCE. 

Municipal  Law. 

But  we  are  to  discuss  law  as  instituted  and  enforced 
among  men  for  their  protection  and  guidance,  and  we  call 
it  municipal  law. 

Definition. — "  Municipal  Law  is  a  rule  of  civil  conduct 
prescribed  by  the  supreme  power  in  a  state,  commanding 
what  is  right  and  prohibiting  what  is  wrong."  By  this  defi- 
nition, the  author  (Blackstone)  must  be  taken  to  mean 
what  the  "supreme  power"  believes  right  or  wrong*  under 
the  circumstances,  at  the  particular  time.  Cicero  first  an- 
nounced this  idea  and  it  is  repeated  by  Justinian.  Doubt- 
less many  things  that  are  wrong  are  not  prohibited,  and 
much  that,  at  various  periods,  was  prohibited,  is  not  wrong. 
Primitive  law  was  fragmentary  and  imperfect.  The  status 
of  society,  the  moral  instincts  of  the  people,  must  be  re- 
garded in  framing  a  code  of  laws.  The  person  who  ob- 
jects to  this  proposition  either  must  impugn  the  wisdom  of 
God  or  must  deny  the  claims  of  the  Pentateuch  to  divine 
origin.  Upon  being  asked  whether  he  had  prepared  the 
best  laws  for  the  Athenians,  Solon  replied:  "The  best 
they  were  capable  of  receiving."  As  the  patient's  condi- 
tion determines  the  appropriate  medicine  to  be  adminis- 
tered and  influences  its  effect,  so  the  state  of  society  affects 
the  nature  and  operation  of  municipal  law. 

Classes. — Municipal  law  is  classified  as 

(a)  Criminal. 

(b)  Civil. 

Criminal  Law. — Criminal  law  deals  with  those  offenses 
against  the  individual,  or  the  community,  which  the  state 
recognizes  as  wrongs  to  society. 

DEFINITION. — "Crime  is  an  act  committed  or  omitted  in 
violation  of  a  public  law  either  forbidding  or  commanding 


INTRODUCTION.  19 

it."  2  A  wrong  which  is  punished  by  the  sovereign  power 
is  a  crime.  Courts  redress  such  wrongs  by  punishing  the 
offender,  but  in  criminal  procedure  they  do  not  grant  relief 
to  the  person  who  suffers  from  the  offense.  Crime  and 
wrong  are  not  interchangeable,  because  not  all  wrongs  are 
crimes  and  the  crimes  of  the  past  may  become  the  virtues 
of  the  future. 

EIGHT  AND  WRONG. — Every  act  is  endowed  with  many 
qualities,  according  to  the  purpose  of  the  classification; 
such  as  right  or  wrong,  legal  or  illegal,  moral  or  immoral, 
rational  or  irrational.  Eight  and  wrong  are  inherent  ele- 
ments of  human  actions  fixed  by  the  Creator  at  the  founda- 
tion of  the  world.  They  are  as  essential  to  our  ideas  of 
conduct  as  time  to  our  conceptions  of  existence  or  space  to 
our  understanding  of  matter.  The  common  instincts  of 
man  suggest  them,  reason  recognizes  their  potency  in 
shaping  men's  course  of  action,  and  the  experience  of  ages 
has  almost  crystallized  them  into  material  substance.  They 
are  controlling  factors  in  all  men's  calculations  and  modify 
the  course  of  human  life.  "Cast  your  eyes  over  all  the 
nations  of  the  world  and  all  the  history  of  nations,"  says 
Eousseau;  "and  amid  so  many  and  absurd  superstitions, 
amid  that  prodigious  diversity  of  manners  and  character, 
you  will  find  everywhere  the  same  principles  and  distinc- 
tions of  moral  good  and  evil.  The  paganism  of  the  ancient 
world  produced,  indeed,  abominable  gods  who  on  earth 
would  have  been  shunned  or  punished  as  monsters,  and 
who  offered  as  a  picture  of  supreme  happiness  only  crimes 
to  commit  and  passions  to  satiate.  But,  armed  with  this 
sacred  authority,  vice  descended  in  vain  from  the  eternal 
abode.  She  found  in  the  heart  of  man  a  moral  instinct  to 
repel  her.  The  continence  of  Xenocrates  was  admired  by 
those  who  celebrated  the  debaucheries  of  Jupiter.  The 

2  4    Blackstone,    5. 


20  MEDICAL   JURISPRUDENCE. 

chaste  Lucretia  adored  the  unchaste  Venus.  The  most  in- 
trepid Roman  sacrificed  to  fear,  invoked  the  god  who  de- 
throned his  father  and  died  without  a  murmur  at  the  hand 
of  his  own.  The  most  contemptible  divinities  were  served 
by  the  greatest  men.  The  holy  voice  of  nature,  stronger 
than  that  of  the  gods,  made  herself  heard  and  respected 
and  obeyed  on  earth,  and  seemed  to  banish  to  the  confines 
of  heaven  guilt  and  the  guilty."  Moral  qualities  cannot 
be  eliminated  from  conduct  without  remodeling  human 
nature. 

PENALTIES. — Criminal  law  seeks  merely  the  infliction  of 
a  penalty  on  the  guilty  party.  The  right  to  inflict  and  the 
purpose  of  the  penalty  will  not  be  discussed.  The  tendency 
of  enlightenment  has  been  to  lessen  the  number  of  penalties 
and  to  ameliorate  their  severity,  and  the  purpose  is  grad- 
ually changing  from  vindictive  to  remedial. 

DEATH  BY  ACCIDENT. — Owing  to  the  difficulty  sometimes 
experienced  in  distinguishing  between  occurrences  which 
happen  by  pure  accident  and  those  which  spring  from  con- 
cealed design,  there  was  a  time  when  accident  did  not  re- 
lieve a  party  from  punishment  for  untoward  results. 
Among  the  Israelites,  the  person  who,  accidentally,  with- 
out fault  or  negligence,  in  the  reasonable  prosecution  of  a 
lawful  pursuit,  caused  the  death  of  another,  was  not  held 
entirely  guiltless;  for  his  life  might  lawfully  be  taken  by 
the  avenger  of  blood.  Cities  of  refuge  were  appointed 
unto  which  such  offenders  must  flee  for  safety  nor  depart 
thence  upon  pain  of  being  slain  by  the  prowling  avenger 
until  the  death  of  the  high  priest  or  acquittal  before  the 
whole  congregation.  Voluntary  expatriation  for  a  year 
was  the  Athenian  penalty  in  such  cases.  "If  an  ox  gore 
a  man  or  a  woman  that  they  die;  then  the  ox  shall  be 
surely  stoned,  and  his  flesh  shall  not  be  eaten. ' '  The  last 
clause  seems  to  imply  that  the  animal  was  guilty  of  wrong. 


INTRODUCTION.  21 

Only  a  few  years  ago  there  was  abolished  in  England  a  law 
providing  that  an  inanimate  object  which  without  fault  or 
negligence  of  its  possessor,  caused  the  death  of  a  human 
being,  should  be  forfeited.  Similar  laws  prevailed  in 
Greece,  Eome  and~other  nations  of  antiquity. 

PENALIZING  BELIEFS. — Nor  did  the  criminal  law  confine 
itself  to  overt  acts  capable  of  demonstration,  but  even  be- 
liefs, especially  when  of  a  religious  character,  were  sub- 
ject to  control. 

Superstition  rummaged  heaven  and  hell  to  lay  her  pal- 
sied hands  on  offenders  against  prevailing  beliefs.  She 
was  seized  with  paroxysms  of  hate,  miscalled  piety,  in  the 
presence  of  heretics  and  witches.  For  five  hundred  years, 
the  laws  from  which  our  jurisprudence  is  derived  were 
blasted  by  bigotry  and  mildewed  by  fanaticism.  Punish- 
ments that  would  shock  the  sensibilities  of  cannibals  were 
ordered  in  the  name  of  the  Prince  of  Peace  and  adminis- 
tered in  the  name  of  humanity.  Intelligent  conviction  was 
prima  facie  heresy.  Genius  might  mimic;  it  must  not 
create.  Mind  was  permitted  to  imitate  but  not  to  think. 
All  the  issues  of  life  were  directed  into  the  narrow  chan- 
nels of  the  past,  so  that  wise  men  were  made  the  disciples 
of  fools.  Intelligence  was  hounded  to  the  gates  of  the 
grave.  Eational  investigation  was  the  greatest  crime  and 
an  original  idea  was  banished  to  the  regions  of  chaos  and 
night.  Only  in  hypocrisy  was  there  safety. 

Civil  Law. — Civil  law  deals  with  disputes  between  indi- 
viduals and  usually  aims  at  recompensing  a  party  for  the 
damage  he  has  sustained  by  the  act  or  default  of  another. 
This  branch  of  the  law  has  two  divisions,  (a)  common  law, 
and  (b)  equity.  A  judgment  at  law  is  usually  for  a  speci- 
fied sum  of  money  payable  to  the  adversary  party  to  the 
suit,  and  in  default  of  payment  the  goods  of  the  judgment 
debtor  may  be  seized  and,  in  most  states,  where  the  action 


22  MEDICAL   JURISPRUDENCE. 

was  founded  upon  tort,  the  debtor  himself  may  be  impris- 
oned in  default  of  payment.  The  term  civil  law,  as  used 
in  this  classification,  must  not  be  confounded  with  the 
great  system  of  jurisprudence  that  came  down  to  us  through 
the  Romans  and  is  still  prevalent  on  the  continent  of  Eu- 
rope, and  which  we  designate  as  the  civil  law,  to  distinguish 
it  from  the  English  system  of  jurisprudence  which  is  de- 
nominated the  common  law. 

IMPRISONMENT  FOR  DEBT. — Imprisonment  for  debt  has 
been  abandoned  by  the  advancing  columns  of  civilization. 
America  took  the  lead  in  the  humane  reform  among  Eng- 
lish-speaking nations.  "There  shall  be  no  imprisonment 
for  debt,  except  in  case  of  fraud"  is  a  general  constitu- 
tional provision.  Formerly,  debtors  were  commonly  liable 
to  punishment,  forfeiture  of  right  or  ignoble  servitude. 
Among  the  Athenians,  prior  to  the  statutes  of  Solon,  this 
unfortunate  class  were  subjected  to  penal  servitude  in  the 
interest  of  the  creditor  or  exiled  for  life.  The  laws  of 
Eome  entitled  the  creditor  to  the  services  of  the  debtor 
during  a  time  sufficient  to  satisfy  his  claims.  They  some- 
times imprisoned  and  bound  in  chains  the  debtor's  person 
and  subjected  him  to  whipping  at  the  instance  and  discre- 
tion of  the  merciless  creditor,  and  permitted  himself,  his 
wife  and  children  to  be  sold  into  perpetual  foreign  slavery. 
Some  maintain  that  the  law  of  the  twelve  tables  authorized 
the  creditors  to  cut  the  debtor's  body  into  pieces  and  take 
their  proportional  parts  determined  by  their  respective 
claims.  Blackstone  tells  us  that,  among  certain  people  of 
India,  the  creditor  might  violate  with  impunity  the  chastity 
of  his  debtor's  wife  in  satisfaction  of  his  claim.  Legis- 
lators, prompted  by  the  cupidity  and  malice  of  creditors, 
exhausted  ingenuity  in  deriving  methods  of  persecution 
and  means  of  extortion.  Bankrupts  in  England  were 
treated  as  criminals  by  early  statutes.  The  merchant  who, 


INTEODUCTION.  23 

hoping  to  retrieve  his  losses  by  a  propitious  turn  of  for- 
tune, concealed  his  insolvency  was  pursued  by  the  sleuth- 
hounds  of  malice  until  the  tomb,  more  charitable  than  man, 
opened  to  receive  him.  Taking  a  risk  in  commercial  indus- 
try was  facing  the  debtor's  prison  and  the  felon's  disgrace. 
Criminal  Action  and  Civil  Suit. — A  criminal  action  and 
a  civil  suit  at  law  may  grow  out  of  the  same  facts ;  thus,  if 
A  assaults  and  beats  B  he  will  be  liable  in  a  criminal  action 
for  assault  and  battery,  at  the  suit  of  the  state,  and  if 
found  guilty  he  may  be  fined  or  imprisoned,  or  both,  and 
he  will  also  be  liable  in  a  civil  suit  at  law  for  damages  to 
B,  and  if  found  guilty  a  money  judgment  will  be  entered 
against  him  which,  if  not  paid,  is  in  most  states  a  basis  for 
a  capias  on  which  he  may  be  imprisoned.  A  thief  may  be 
proceeded  against  criminally  by  the  State,  and  also  civilly 
by  the  owner  of  the  property  converted  to  recover  the  value 
thereof. 

Substantive  Law. 

Substantive  law  is  based  upon  the  prevailing  notions 
of  right  and  wrong  and  develops  with  our  ideas  of  justice. 
It  is  the  expression  of  permanent,  prevalent,  persistent 
public  opinion,  fortified  by  the  composite  conscience  of  the 
race,  hence  the  similarity  in  laws  of  all  civilized  peoples. 

Administrative  Law. 

Administrative  law  grows  out  of  custom.  What  at  one 
time  was  practice,  developed  into  custom  and  finally  crys- 
tallized into  law. 

Development  of  Medical  Science. 

The  study  of  human  ailments  has  always  challenged  th-3 
attention  and  absorbed  the  best  thought  of  mankind.  Be- 
cause of  the  early  association  of  disease  with  the  idea  of 
punishment  for  offenses  against  the  deities  it  is  not  surpris- 


24  MEDICAL   JUKISPKUDENCE. 

ing  that  in  the  earlier  ages  the  treatment  of  maladies  should 
have  taken  on  a  religious  aspect.  As  disease  was  supposed 
to  be  a  punishment  by  the  gods  for  the  sins  of  those  who 
were  afflicted,  the  rational  course  of  treatment  was  to  ap- 
pease the  wrath  of  the  offended  deities  by  appropriate  ex- 
piatory incantations.  This  notion  is  still  entertained  in 
modified  forms,  and  the  old  treatments,  also  modified,  are 
still  believed  by  some  to  be  efficacious.  But  it  was  early 
discovered  that  this  hypothesis  of  the  origin  of  disease  did 
not  harmonize  with  all  cases;  that  afflictions  were  visited 
alike  on  the  just  and  the  unjust,  and,  therefore,  a  belief 
arose  that  human  ailments  were  the  manifestations  of  the 
possession  of  the  afflicted  by  evil  spirits.  In  fact  it  was  be- 
lieved that  man  and  the  world  he  lives  in  were  the  field  of 
contest  between  the  evil  and  the  good.  Then,  to  be  ill  was 
to  be  possessed  of  malignant  and  wicked  spirits.  In  such 
frame  of  mind  the  rational  treatment  for  sickness  would 
naturally  consist  in  the  unrelenting  exorcism  of  these  de- 
mons of  hate.  Often  the  remedy  was  worse  than  the  dis- 
ease, but  if  the  patient  recovered  he  sang  the  praises  of  his 
deliverers;  if  he  died — well — he  was  gathered  to  his 
fathers. 

During  these  stages  of  the  healing  art,  but  little  atten- 
tion was  paid  to  the  study  of  the  real  causes  of  disease  and 
the  means  of  its  amelioration.  But  gradually  enlighten- 
ment dawns  on  a  prejudiced  and  biased  world  and  one  by 
one,  by  slow  degrees,  by  more  and  more,  the  eternal  veri- 
ties are  revealed.  Some  one  had  the  temerity  to  think 
that  somehow  the  human  organism  itself  might  have  some- 
thing to  do  with  the  subject  of  sickness,  and  the  study  of 
anatomy  began.  It  finally  dawned  upon  the  more  intelli- 
gent that  possibly  the  various  organs,  parts  and  tissues  of 
the  body  had  some  function,  some  purpose  in  the  economy 
of  life,  and  the  beginning  of  physiology  dawned. 


INTRODUCTION.  25 

For  the  purposes  of  this  volume  it  is  unnecessary  to 
trace  minutely  the  development  of  the  science  of  medicine 
and  surgery  and  its  allied  fields  of  investigation.  Suffice  it 
to  say  that  medical  knowledge  kept  pace  with  the  develop- 
ment of  other  inductive  sciences  and,  as  law  is  the  expres- 
sion and  interpretation  of  the  enlightenment  of  the  time, 
the  medical  fraternity  has,  step  by  step,  shaped  our  juris- 
prudence in  matters  pertaining  to  medical  subjects.  What- 
ever the  state  of  knowledge  at  the  time,  that  was  the  condi- 
tion which  prevailed  and  was  enforced  in  the  courts.  The 
latter  turned  to  the  medical  profession  for  enlightenment 
and  guidance  on  medical  subjects  and,  of  course,  accepted 
the  prevailing  sentiments  on  the  subjects  involved.  As 
late  as  the  latter  half  of  the  17th  Century  the  courts  ac- 
cepted the  opinions  of  doctors  and  learned  men  that  persons 
on  trial  were  bewitched.  All  the  vagaries  of  the  profession 
have  at  one  time  or  another  prevailed  in  the  administra- 
tion of  the  law.  In  all  ages  the  medical  profession  was 
looked  to  for  the  last  word  on  what  was  right  and  what  was 
wrong  within  its  domain. 

The  Physician  and  the  Courts. 

Courts  have  always  tried  to  enforce  the  laws  in  the 
spirit  of  the  enlightenment  of  the  time  and  have  never 
hesitated  to  impress  the  services  of  men  of  science  and 
skill  to  enable  them  to  arrive  at  a  correct  conclusion  on  the 
issues  presented  for  consideration.  They  never  lead  but 
should  keep  pace  with  public  opinion.  Where  the  science 
of  medicine  is  involved,  the  physician  is  appealed  to  for 
enlightenment  in  the  administration  of  the  law  and  the  set- 
tlement of  the  matters  in  dispute.  The  scenes  enacted  in 
courts  are  always  intensely  human.  Questions  with  a  medi- 
cal significance  are  always  being  pressed  for  answer  and 
the  ingenuity  of  the  specialist  is  taxed  to  keep  pace  with 


26  MEDICAL   JURISPRUDENCE. 

the  exacting  demands  of  the  issues  raised.  The  distinctly 
medical  subjects  involved  are  not  only  intricate  and  diversi- 
fied but  also  incapable  of  exact  classification,  while  the 
legal  aspect  thereof  includes  both  substantive  and  admin- 
istrative law.  Some  of  the  earliest  questions  raised  were 
the  legitimacy  of  claimants  to  inheritances  and  put  in  issue 
matters  of  impotency,  sterility,  period  of  gestation  in 
women  and  other  sexual  subjects,  and  the  courts  sought  the 
assistance  of  medical  men  for  information  and  guidance. 
The  tremendous  development  of  industry  and  transporta- 
tion has  its  corresponding  concomitant  in  injuries  to  the 
person,  and  its  inevitable  attendant,  death  by  violence 
through  negligence  and  accident,  and  as  a  result  our  courts 
are  flooded  with  litigation  between  the  injured  and  those 
alleged  to  be  legally  responsible  for  the  misfortune,  and  in 
turn  this  fact  has  given  a  like  prominence  to  the  medical 
significance  of  personal  injuries,  their  causes,  cures  and 
effects.  Every  branch  of  medical  knowledge,  in  one  form 
or  another,  may  be  needed  to  settle  disputes  between  liti- 
gants. 

Definition  of  Medical  Jurisprudence. 

Medical  jurisprudence  is  the  science  which  treats  of  the 
application  of  medical  and  surgical  knowledge  and  skill  to 
the  principles  and  administration  of  the  law.  It  comprises 
all  legal  subjects  which  have  a  medical  aspect. 

The  author  has  confined  himself  to  the  legal  phase  of  the 
subject  and  the  reader  is  referred  to  standard  medical 
works  for  the  medical  side. 


CHAPTER  II. 

COUETS  AND  PROCEDURE. 
Courts. 

Every  civilized  community  establishes  tribunals  charged 
with  the  duty  of  doing  justice  between  disputants,  of  inter- 
preting laws  and  settling  legal  disputes  between  its  mem- 
bers and  places  at  their  disposal  the  supreme  power  in  the 
State,  to  enforce  their  judgments  and  commands.  Hence — 

Definition. — A  court  is  a  judicial  tribunal  constituted  by 
the  supreme  power  of  a  State  to  interpret  and  apply  its 
laws  and  to  enforce  certain  rights  and  redress  certain 
wrongs  in  accordance  with  established  usage  or  prescribed 
rules  of  procedure. 

Legal  Right. — A  legal  right  is  a  claim  enforcible  in  a 
judicial  tribunal ;  a  capacity  residing  in  one  person  to  con- 
trol or  restrain,  with  the  assent  and  assistance  of  the  State, 
the  actions  of  another.  With  reference  to  their  applica- 
tion and  origin,  legal  rights  in  common  law,  are  divided 
into  two  classes,  (a)  rights  in  personam  and  (b)  rights  in 
rem.  The  former  are  exercisable  over  persons,  the  latter 
over  things.  Rights,  in  the  civil  law,  have  been  classified 
as  (a)  rights  in  law,  enforcible  in  the  courts;  (b)  rights  in 
trust,  enforcible  in  conscience,  that  is  to  say,  in  equity, 
and  (c)  rights  in  courtesy,  enforcible  only  by  persuasion, 
entreaty,  etc. 

Jurisdiction. 

Definition. — Jurisdiction  is  the  power  to  hear  and  deter- 
mine. In  this  connection,  two  things  must  be  considered, 

27 


28  MEDICAL   JURISPRUDENCE. 

(a)  the  subject-matter  of  the  controversy,  and  (b)  the  per- 
son of  the  litigants.  Jurisdiction  of  the  subject-matter  is 
derived  expressly  or  impliedly  from  the  authority  which 
creates  the  court,  while  jurisdiction  of  the  person  is  ac- 
quired by  notice  in  accordance  with  the  provisions  of  law 
or  established  usage. 

Notice. — Some  form  of  notice  to  the  party  whose  rights 
are  to  be  affected  is  indispensable  to  the  right  of  the  court 
to  proceed  against  him;  in  fact  such  course  is  inherent  in 
human  ideas  of  justice.  The  notice  given  a  party  in  a  civil 
suit  is  known  as  a  summons,  and  must  be  served  in  time  to 
give  the  party  a  reasonable  opportunity  to  be  heard. 
Granting  that  the  court  has  jurisdiction  over  the  subject- 
matter  of  the  controversy,  then  jurisdiction  of  the  person 
attaches  with  service  of  the  summons. 

When  a  court  has  a  right  to  try  and  to  determine  a  cause, 
it  is  said  to  have  jurisdiction  thereof,  and  its  orders  and 
judgments  are  binding  upon  all  parties  to  the  suit  and  their 
privies,  and  even  upon  the  court  itself  in  all  subsequent 
litigation  involving  the  same  points  and  parties.  How- 
ever, if  a  court  does  not  have  jurisdiction  its  decrees  are 
an  absolute  nullity  and  are  binding  upon  no  one.  In  civil 
matters  the  actual  presence  of  the  defendant  is  not  essen- 
tial to  the  power  of  the  court  to  proceed,  when  it  appears 
that  the  defendant  has  been  given  due  notice  according  to 
law.  Under  certain  circumstances,  courts  may  proceed 
against  property  within  their  territorial  jurisdiction,  even 
though  they  cannot  reach  the  owner  personally  by  their 
processes.  The  property  which  is  protected  by  the  law  of 
a  state  must  be  subject  to  its  laws  for  the  enforcement  of 
rights  with  reference  to  the  property  itself  and  also  with 
reference  to  claims  against  its  owner.  In  this  connection 
jurisdiction  may  be  (a)  in  rent,  or  (b)  in  personam. 


COURTS   AND   PROCEDURE.  29 

Procedure. 

Court  procedure  is  a  development  from  custom,  while 
customs  have  their  origin  in  the  habits,  mode  of  life  and 
special  circumstances  of  the  people  among  whom  they  pre- 
vail. The  chief  merit  of  any  system  of  procedure  lies  in 
the  generality  of  its  application,  the  uniformity  of  its  rules 
and  the  certainty  of  its  course.  Courts  must  adhere  to 
established  modes  of  procedure,  otherwise  the  administra- 
tion of  justice  would  fall  into  chaos.  There  is  great  di- 
versity in  the  procedure  of  the  courts  of  different  countries 
and  yet  all  arrive  in  the  end  at  substantial  justice.  In  some 
systems  of  jurisprudence  the  lawyer  has  but  little  influence 
on  the  course  of  inquiry,  while  on  the  other  hand  wherever 
English  jurisprudence  prevails,  the  interrogating  lawyer 
can  determine  in  a  large  measure  the  course  of  the  testi- 
mony. The  witness  may  be  confined  to  a  categorical  an- 
swer to  a  specific,  limited  question  propounded  to  him. 
He  may  even  be  required  to  answer  a  specific  question  by 
either  "yes"  or  "no,"  according  to  the  circumstances,  and 
if  he  says  he  cannot  so  answer,  his  testimony  thereon  in 
that  examination  may  be  limited  to  that  admission.  The 
object  of  rules  of  procedure,  relating  to  the  introduction 
of  evidence,  is  to  enable  the  court  to  control  the  character 
of  evidence  introduced  and  confine  it  to  the  point  at  issue. 
All  answers  to  direct  interrogatories  must  be  responsive  to 
their  respective  questions,  and  confined  to  the  purview  of 
the  questions  to  which  they  respond.  Any  answer  or  part 
of  answer  which  does  not  meet  these  requirements,  either 
by  not  being  responsive  or  by  volunteering  more  than  the 
question  called  for,  will  be  stricken  from  the  record,  on 
motion.  This  is  in  sharp  contrast  to  some  systems  of  juris- 
prudence. In  certain  actions  in  some  jurisdictions  it  ap- 
pears that  the  witnesses  are  permitted  to  harangue  the 
court  and  jury  without  any  power  or  right  on  the  part  of 


30  MEDICAL   JURISPRUDENCE. 

counsel  to  interfere  with  their  tirade.  They  may  comment 
upon  the  effect  of  testimony,  may  boast  of  the  prominence 
of  themselves,  the  superiority  of  their  intellect  and  experi- 
ence, the  importance  of  their  statements  and  conclusions, 
may  give  their  opinion  on  the  guilt  of  the  accused,  may 
berate  the  defendant  from  the  witness  chair,  and  even  refer 
to  matters  of  hearsay  of  several  persons  removed. 

Trial. — A  trial  is  a  regular  and  formal  examination  by  a 
competent  court  or  judicial  officer  into  the  material  facts 
of  a  controversy  in  issue,  in  order  to  determine  and  enforce 
the  respective  rights  of  the  contestants.  Some  trials  may 
be  conducted  by  the  judge  alone,  and  others  with  the  as- 
sistance of  a  jury.  By  the  Federal  Constitution  a  party 
charged  with  crime  has  a  right  to  a  trial  by  a  jury,  which 
shall  determine  all  controverted  questions  of  fact.  In 
courts  of  equity  the  trial  is  had  before  the  chancellor. 
However,  he  may  call  a  jury  to  pass  upon  issues  of  fact, 
but  the  finding  of  the  jury  is  usually  only  advisory  and  not 
binding  upon  him. 

Trial  by  Ordeal. — Sometimes  the  accused  was  given  the 
right  of  trial  by  ordeal.  According  to  the  beliefs  of  the 
time,  an  innocent  person  accused  of  crime,  could  walk, 
hoodwinked,  unharmed  over  red-hot  irons  placed  on  the 
ground  at  irregular  intervals;  could  drink  with  impunity 
the  most  deadly  poisons;  could  put  his  hands  in  boiling 
water  or  hold  a  hot  iron  without  injury,  and  would  sink  if 
thrown  into  water. 

Formerly,  but  few  trial  privileges  were  given  to  persons 
accused  of  crime.  They  were  not  permitted  to  have  coun- 
sel and  were  debarred  the  right  to  make  a  defense.  Pre- 
sumption of  guilt  and  burden  of  proof  were  against  them. 
The  trial  was  purely  an  ex  parte  proceeding,  and  in  many 
cases  all  that  remained  to  be  done  after  the  indictment  was 
found  was  to  inflict  the  penalty.  The  accused  might  not 


COURTS  AND   PROCEDURE.  31 

see  or  know  who  were  the  witnesses  against  him  nor  know 
the  nature  of  their  testimony.  In  this  country  these  sub- 
jects are  controlled  by  constitutional  provisions. 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  .  .  . 
and  to  be  informed  of  the  nature  and  cause  of  the  accusa- 
tion; to  be  confronted  with  the  witnesses  against  him;  to 
have  compulsory  process  for  obtaining  witnesses  in  his 
favor,  and  to  have  the  assistance  of  counsel  for  his  de- 
fense." i 

Jury. 

Since  the  time  when  his  rebellious  subjects  wrung  Magna 
Charta  from  the  reluctant  hands  of  King  John  in  1215,  it 
has  been  a  cardinal  principle  of  civil  liberty  among  Eng- 
lish speaking  people  that  no  person  may  be  seized  or  im- 
prisoned or  disseized  of  his  free-hold  or  estate;  or  exiled 
or  condemned  or  deprived  of  life,  liberty  or  property  except 
by  the  law  of  the  land  or  the  judgment  of  his  peers.  "No 
freeman, ' '  runs  that  great  proclamation  of  the  rights  of  the 
common  people,  "shall  be  seized  or  imprisoned,  or  dis- 
possessed or  outlawed,  or  in  any  way  brought  to  ruin;  we 
will  not  go  against  any  man  nor  send  against  him,  save  by 
legal  judgment  of  his  peers  or  by  the  law  of  the  land." 

In  all  criminal  prosecutions,  and  in  civil  suits  in  Illinois, 
where  the  value  in  controversy  exceeds  twenty  dollars, 
questions  of  fact  are  to  be  decided  by  jury.  All  States  have 
similar  provisions,  constitutional  or  statutory. 

i  Const.  U.  S.,  Amdmt.   6. 


CHAPTER  III. 
EVIDENCE. 

Definition. — Evidence  is  a  general  term  and  means  that 
which  demonstrates  or  tends  to  establish  or  make  clear  or 
certain  the  truth  or  falsity  of  a  fact  in  issue.  In  law  evi- 
dence is  any  matter  of  fact,  the  effect,  tendency  or  design 
of  which  is  to  produce  in  the  mind  a  persuasion,  an  inclina- 
tion, affirmative  or  negative,  of  the  existence  of  some  other 
matter  of  fact  which  is  the  subject  of  inquiry  and  includes 
all  the  means,  whether  of  fact  or  opinion,  by  which  an  al- 
leged fact,  the  truth  of  which  is  submitted  for  investigation, 
is  established  or  disproved. 

Testimony. — Testimony  is  the  statement  or  declaration 
of  a  witness  before  a  court  for  the  purpose  of  establishing 
or  refuting  some  fact  in  issue.  It  is  a  branch  of  evidence 
and  is  the  means  by  which  certain  facts,  within  the  knowl- 
edge of  persons,  are  brought  before  the  court  when  the 
same  are  material  to  the  issues  in  the  case. 

Witness. — A  witness  is  one  who  gives  testimony  in  a  case 
before  a  court,  and  includes  every  person  from  whom  testi- 
mony is  received  to  be  used  in  a  judicial  proceeding.1 

Oath  or  Affirmation. — Before  testifying  a  witness  must 
be  sworn  or  affirmed  to  tell  the  truth. 

Competency  of  Evidence. — The  question  of  the  compe- 
tency of  evidence  is  addressed  to  the  court  but,  its  compe- 
tency admitted,  its  weight  and  effect  are  exclusively  for 
the  jury. 

"The  competency  of  witnesses  has  been  greatly  extended 
in  modern  times  by  legislation.  The  tendency  of  courts 

1  Baker   v.   Coit,   1  Root,   225;   Bliss   v.   Scheman,   47  Me.,   252. 

32 


EVIDENCE.  33 

has  been  in  the  same  direction  of  liberality.  More  and 
more  has  been  left  to  be  determined  upon  the  credibility  of 
the  witness,  but  there  has  not  been  any  relaxation  of  the 
rule  against  hearsay  evidence.  Nor  has  the  scope  allotted 
to  the  field  of  opinion  evidence  been  materially  enlarged. 
Hearsay  evidence  has  been  always  regarded  as  generally 
untrustworthy,  while  opinion  evidence  is  placed  low  in  the 
scale  and  receivable  at  all  only  because  there  seems  no 
other  practicable  way  to  establish  the  fact. ' ' 2 

Rules. — A  knowledge  of  the  rules  for  the  introduction  of 
evidence  is  practically  indispensable  to  efficient  testimony 
as  an  expert,  and  it  is  highly  to  be  desired  even  when  testi- 
fying as  an  ordinary  witness.  A  few  of  the  more  important 
rules  are, — 

1.  The  answer  must  be  responsive  to  the  question. 

2.  The  answer  should  not  go  beyond  the  purview  of  the 
question. 

3.  Ordinarily  the  witness  should  not  volunteer  informa- 
tion. 

4.  A  witness  who  speaks  English,  must  testify  in  that 
language. 

Subjects  of  Testimony. 

A.  Facts. — Generally  speaking,   a  witness  may  testify 
only  to  facts,  circumstances  and  conditions  which  have  been 
brought  to  his  knowledge  by  means  of  one  or  more  of  the 
senses,  but  he  may  not  state  inferences   or  conclusions 
drawn  by  him  from  such  observations  or  from  admitted 
facts. 

B.  Opinion  Evidence. — BY  OBDINAEY  WITNESSES. — In  ac- 
tual practice,  however,  there  are  a  great  variety  of  subjects 
in  which  ordinary  testimony  savors  of  opinion  evidence. 

Illustrations. — Thus,  an  ordinary  witness  may  state  his 
opinion  concerning  the  age  of  a  person  whom  he  has  seen ; 

2  0.  &  O.  By.  Co.  v.  Wiley,  134  Ky.,  461. 


34  MEDICAL   JUEISPEUDENCE. 

on  matters  of  color,  size,  weight,  quantity,  value,  distance, 
speed,  time,  etc. ;  relative  to  the  identity  of  persons,  places 
or  things ;  whether  a  person  appeared  angry,  sad,  nervous, 
excited,  sick,  in  poor  health,  well,  ill,  attached  to  another, 
sober  or  intoxicated ;  whether  a  person  appeared  to  be  suf- 
fering pain,  showed  fear,  manifested  grief,  was  formerly 
in  good  health,  was  rational  or  irrational,  sane  or  insane, 
had  failed  mentally  in  a  given  time,  looked  bad,  was  of  in- 
temperate habits,  acted  strangely  or  in  a  childish  manner, 
was  "short"  in  answering  questions,  eccentric,  or  of  a  fickle 
mind;  whether  the  mind  of  a  person  was  clear,  etc. 

Weight  of  Such  Evidence. — The  confidence  to  which  such 
opinion  is  entitled  depends  upon  the  character  of  the  exami- 
nation made  by  the  witness,  the  nature  of  the  subject-mat- 
ter to  which  it  refers,  and  the  intelligence  and  good  faith 
of  the  witness.3 

Reason  for  Admission. — These  exceptions  to  the  general 
rule  that  ordinary  witnesses  can  testify  only  to  facts  which 
come  to  their  knowledge  through  some  of  the  senses,  are 
made  to  promote  justice  and  are  founded  upon  necessity. 
Circumstances  there  are  in  which,  because  of  the  imperfec- 
tion and  limitations  of  language  and  the  instability  of  men- 
tal impressions,  the  witness  can  express  a  condition  or 
state  of  facts  more  clearly  by  giving  his  inferences  at  the 
time,  from  the  impressions  made  on  his  mind,  than  by  at- 
tempting a  detailed  enumeration  of  those  impressions. 
Often  facts  of  personal  observation,  especially  of  conver- 
sations, are  remembered  only  by  the  mental  conclusions 
which  they  produce  at  the  time.  Thus,  it  may  be  difficult 
or  even  impossible,  to  describe  in  detail  a  person's  condi- 
tion or  conduct  at  a  given  time,  when  the  observer  may 
disclose  the  key  to  the  whole  matter  by  merely  stating  his 
own  impression  at  the  time;  such  as,  that  the  person  was 

3  Hopt.  v.  Utah,  120  U.  S.,  437. 


EVIDENCE.  35 

angry,  or  excited,  or  intoxicated,  or  sad,  etc.  Whenever 
the  condition  sought  to  be  established  is  such  that  it  cannot 
be  reproduced  and  made  palpable  in  the  concrete  to  the 
court  or  jury,  or  when  language  is  inadequate  to  make  the 
court  or  jury  see  it  and  know  it  as  the  witness  saw  it  and 
knew  it,  then  the  ordinary  witness  may  describe  the  condi- 
tion by  its  effect  upon  his  own  mind  at  the  time,  even 
though  such  method  savors  of  an  opinion.4  Such  evidence 
has  been  said  to  be  competent  from  necessity,  on  the  same 
ground  as  the  testimony  of  an  expert,  as  being  the  only 
method  of  proving  certain  facts  essential  to  the  proper  ad- 
ministration of  justice.  It  has  been  said  that  it  is  not  a 
mere  opinion  which  is  thus  given  by  the  witness,  but  a 
conclusion  of  fact  to  which  his  judgment,  observation  and 
common  knowledge  have  led  him.  The  admission  of  the 
opinion  is  an  exception  to  the  general  rule,  which  does  not 
permit  opinions,  in  regard  to  a  subject-matter  which  re- 
quires no  special  learning  or  experience,  and  which  is 
within  the  knowledge  of  men  in  general.5 

' 'Argument  in  support  of  the  objections  to  all  these 
answers  is  comprehended  within  the  general  rule  that  a 
witness,  not  an  expert,  is  not  competent  to  testify  to  an 
opinion.  Where  a  previous  habit  of  study  is  essential  to 
the  formation  of  an  opinion  sought  to  be  put  in  evidence, 
only  such  persons  are  competent  to  express  an  opinion  as 
have,  by  experience,  special  learning  or  training,  gained  a 
knowledge  of  the  subject-matter  upon  which  an  opinion  is 
to  be  given,  superior  to  that  of  an  ordinary  person.  Wit- 
nesses, not  experts,  are,  however,  allowed  to  express  opin- 
ions when  the  subject-matter  to  which  the  testimony  relates 
is  such  in  its  nature  that  it  cannot  be  reproduced  and  de- 
scribed to  the  jury  precisely  as  it  appeared  at  the  time. 


4  Whittier  v.  Franklin,  46  N.  H.,  23 ;  Knoll  v.  State,  55  Wis.,  249. 

5  Com.  v.  Sturtevant,   117  Mass.,   122. 


36  MEDICAL   JURISPRUDENCE. 

Opinions  may  be  given  by  non-expert  witnesses  as  to  the 
state  of  health,  hearing  or  eye-sight  of  another,  or  the 
ability  of  another  to  work,  or  walk,  or  use  his  arms  or  legs 
naturally,  or  whether  such  other  person  is  apparently  suf- 
fering pain,  or  is  unconscious,  or  in  possession  of  his  or  her 
mental  faculties,  intoxicated,  excited,  calm,  etc. ' ' 6 

Not  Favored. — The  law  does  not  look  with  favor  upon 
the  introduction  of  opinion  evidence,  whether  ordinary  or 
expert.  As  a  rule,  witnesses  are  required  to  testify  to  facts 
directly  within  their  knowledge;  it  is  for  the  court  or  jury 
to  draw  conclusions  and  form  opinions  of  ultimate  facts 
from  the  probative  facts  thus  brought  before  them. 

BY  EXPERT  WITNESSES. — Opinion  evidence  is  testimony  in 
the  form  of  an  opinion  based  upon  facts  proved  or  assumed, 
concerning  a  matter  involving  scientific  or  technical  knowl- 
edge not  within  the  experience  of  the  ordinary  witness.7 

Subject-Matter  of  Expert  Testimony. — The  test  of  the 
admissibility  of  expert  testimony  is, — Is  the  question  upon 
which  the  evidence  is  offered,  one  of  science,  skill  or  special 
experience  or  occupation?  The  subject  must  be  one  which 
the  courts  recognize,  as  a  matter  of  judicial  notice,  as  being 
a  matter  of  special  study,  experience  or  occupation,  either 
for  professional  or  other  purposes,  and  it  must  relate  to 
some  particular  department  of  human  knowledge  or  activ- 
ity. The  subjects  to  which  this  kind  of  evidence  is  appli- 
cable are  not  necessarily  confined  to  classified  and  specific 
professions.  It  is  applicable  wherever  particular  skill, 
experience  and  judgment,  applied  to  particular  subjects, 
are  required  to  explain  results  or  trace  them  to  their  causes, 
and  in  which,  as  a  matter  of  business,  recreation  or  study, 
there  are  persons  who  are  specially  informed. 

Effect  of  Opinion  Evidence. — The  jury  cannot  disregard 

6W.  C.   8.  R.  Co.  v.  Fishman,   169  111.,   196,   198;   Greinke  v.  Chicago  City  Ry.  Co., 
234  111.,   564,   571. 

7  W.  C.  S.  R.  Co.  v.  Fishman,  169  111.,  196. 


EVIDENCE.  37 

the  testimony  of  experts  where  it  refers  to  facts  pertaining 
to  the  profession,  but  when  it  comes  to  the  mere  opinion  of 
witnesses,  however  skillful,  as  in  cases  of  insanity,  the  jury 
have  a  right  to  disregard  the  opinions  and  substitute  their 
own  conclusions  from  their  ordinary  intelligence  and  infor- 
mation. Opinion  evidence  is  only  advisory.  It  may  be 
followed  or  disregarded  by  the  jury.  Experts  are  per- 
mitted to  testify  with  a  view  of  assisting  the  jury  to  draw 
the  right  conclusions  but  they  do  not  take  the  place  of  the 
jury.  After  all  the  experts  have  spoken,  the  jury  must 
draw  its  own  conclusions  of  legal  responsibility.8 

The  following  charge  to  the  jury  was  held  to  be  a  cor- 
rect statement  of  the  law:  "You  are  necessarily  bound, 
independent  of  every  other  consideration,  to  adopt  the  tes- 
timony of  the  physicians  and  surgeons  when  you  come  to 
determine  whether,  on  the  facts  in  this  case,  these  defend- 
ants have  treated  the  case  in  a  proper  form  and  by  the  use 
of  proper  appliances. ' ' 9 

But  the  opinion  of  experts  as  to  the  customary  charge 
for  services,  the  reasonableness  of  a  fee  or  the  value  of 
professional  services  are  not  considered  binding  on  court 
or  jury,  but  they  cannot  be  arbitrarily  disregarded  without 
reason  appearing  in  the  evidence..10 

The  opinion  of  a  physician  is  entitled  to  such  weight  and 
consideration  as  his  experience,  skill  and  knowledge,  in  the 
special  subject  of  inquiry  justify.11  It  is  the  duty  of  the 
jury  to  consider,  as  affecting  credibility,  that  a  physician 
who  testified  as  an  expert  was  specially  compensated  by 
the  party  in  whose  favor  he  testified.12  At  the  present 
time,  the  force  of  expert  testimony  is  greatly  weakened  by 

8  Rolater  v.   Strain    (Okl.),   137  Pac.,  96,   99;   Oborn  v.  State,   143  Wis.,   249. 

9  Spaulding  v.   Bliss,   83   Mich.,   311. 

10  Spaulding  v.  Bliss,  83  Mich.,  811;  Ladd  v.  Witte,   116  Wis.,   35;  In  re  Smith,   41 
N.  Y.  Supp.,  1093. 

11  U.  S.  v.  Prendergast,  32  Fed.,  198. 

18  Ware  v.  Starkey,  80  Va.,  204 ;  Harvey  v.  Packet  Co.,  8  Miss.,  99. 


38  MEDICAL   JUEISPKUDENCE. 

a  prevailing  conviction  that  the  expert  is  a  special  pleader 
who  presents  at  best  only  one  side  of  the  case  and  whose 
opinion  is  regulated  according  to  the  size  and  source  of 
Ms  fee. 


CHAPTER  IV. 
EXPERT  WITNESS. 

Definition. — An  expert  witness  is  one  who  has  made  the 
subject  upon  which  he  gives  his  opinion,  a  matter  of  par- 
ticular study,  practice  or  observation,  and  who  has  a  par- 
ticular knowledge  on  the  subject  which  must  be  recognized 
in  law  as  a  distinct  department  of  human  knowledge  and 
endeavor. 

An  expert  is  one  who,  in  regard  to  a  particular  subject 
or  department  of  human  activity,  possesses  knowledge  not 
possessed  by  ordinary  persons.1 

An  expert  is  a  person  instructed  by  a  specially  acquired 
information,  knowledge  and  experience  upon  subjects  pre- 
sumably not  within  the  range  of  ordinary  intelligence  and 
observation.2 

Preliminary  Inquiry  as  to  Qualifications. — Whether  a 
person  who  has  been  called  as  an  expert  has  the  requisite 
qualifications  in  the  particular  subject-matter  involved  to 
enable  him  to  testify  as  an  expert,  is  a  preliminary  ques- 
tion to  be  determined  by  the  court,  and  the  decision  of  the 
court  is  conclusive,  unless  it  appears  from  the  evidence  to 
be  clearly  erroneous  or  to  have  been  founded  upon  some 
error  in  law.3  After  a  witness  has  been  permitted  to  tes- 
tify as  an  expert,  the  weight  and  effect  of  his  testimony  is 
a  question  exclusively  for  the  jury,  and  is  entitled  to  such 
weight  and  consideration  as  his  skill  and  experience  in  the 
special  subject  of  inquiry  justify.4  In  determining  the 

1  Sievert  v.  People,  145  111.,  571;  Jones  v.  Tucker,  41  N.  H.,  546. 

2  Page  v.  Parker,  40  N.  H.,  47,  59;  Hyde  •».  Woolfolk,  1  la.,  167. 

3  Parkins  v.  Stickney,   132  Mass.,  218 ;  Congress  Co.  v.  Edgar,  99  U.  S.,  657. 

4  Davis  v.  State,  35  Ind.,  496;  U.  S.  v.  Prendergast,  33  Fed.,  198, 

39 


40  MEDICAL    JUKISPBUDENCE. 

weight  to  be  given  to  the  testimony  of  an  expert,  it  is  proper 
for  the  jury  to  take  into  consideration  the  fact  that  he  was 
specially  compensated  by  the  party  in  whose  favor  he  tes- 
tified.5 

Conduct. — The  expert  witness  should  endeavor  to  make 
his  statements  clear  and  intelligible  to  the  ordinary  lis- 
tener. He  must  not  forget  that  he  is  called  upon  to  testify 
because  the  subject  is  not  within  the  field  of  knowledge  of 
the  person  to  whom  his  testimony  is  directed  and  for  whose 
benefit  he  is  called  as  a  witness.  He  should  avoid  as  much 
as  possible  the  use  of  technical  terms  and  language  sug- 
gestive of  pedantry,  subterfuge  or  display.  He  should  shun 
even  the  suggestion  of  advertising  himself  or  parading  his 
accomplishments  and  speak  with  becoming  modesty  on  all 
matters  pertaining  to  his  qualifications,  experience  and 
achievements.  Able  testimony  may  lose  its  convincing 
force  by  being  preceded  and  introduced  by  a  spirit  of  brag- 
gadocio. It  is  important  to  the  expert  to  be  familiar  with 
rules  and  practices  of  courts  relating  to  the  examination 
of  witnesses,  as  it  may  save  conflict  with  the  attorneys  and, 
possibly,  even  reprimand  from  the  judge. 

Basis  of  Opinion. — An  expert  may  base  his  opinion  upon 
information  (a)  obtained  by  his  own  examination  of  the 
party  and  testified  to  by  him  in  court,  or  (b)  gained  by  him 
from  testimony  which  he  heard  in  the  case  in  court,  or  (c) 
assumed  in  a  hypothetical  question  propounded  to  him. 

Confined  to  Special  Knowledge. — When  testifying  an  ex- 
pert must  be  strictly  confined  to  the  limits  of  the  special 
knowledge  of  his  profession  or  occupation.6 

Physicians  as  Experts. — The  earliest  recognition  of  ex- 
pert opinion  evidence  was  in  the  admission  by  the  courts 
of  opinions  of  physicians  in  matters  pertaining  to  their 

5  Ware  v.   Starkey,   80  Vs.,  204. 

6  Milwaukee  Co.  v.  Kellogg,  94  U.  S.,  472 ;  Page  v.  Parker,  40  N.  H.,  47,  59 ;  People  v. 
Lehr,  196  111.,  361, 


EXPERT   WITNESS.  41 

profession.  The  acceptance  of  this  class  of  witnesses  as 
experts  is  now  so  general  that  their  opinions  are  taken  in 
all  matters  pertaining  to  their  profession. 

In  1619,  an  ejectment  case  turned  on  the  question  of  the 
legitimacy  of  a  posthumous  child,  and  the  court,  having 
first  received  "the  testimony  of  two  doctors  of  physic," 
held  as  a  matter  of  law  "that  it  might  well  be,  as  the  phy- 
sicians had  affirmed,  that  ten  months  may  be  said  properly 
to  be  the  time  of  gestation."  The  record  in  this  case 
closes  by  reciting, — "So  the  court  delivered  to  the  jury  that 
the  said  Elizabeth,  who  was  born  forty  weeks  and  more 
after  the  death  of  the  said  Edmund  Andrews,  might  well 
be  the  daughter  of  the  said  Edmund. "  7  At  a  famous  trial 
for  witch-craft,  at  Bury  St.  Edmund's,  in  1665,  Dr.  Thomas 
Browne,  who  testified  as  a  "person  of  great  knowledge," 
after  viewing  the  accused,  "was  desired  to  give  his  opinion 
what  he  had  conceived  of  them,  and  that  he  was  clearly  of 
opinion  that  the  persons  were  bewitched. ' ' 8  The  case  does 
not  disclose  why  a  doctor  should  be  any  more  competent  to 
testify  on  that  subject  than  a  layman. 

In  1678,  the  testimony  of  medical  men  was  admitted  be- 
fore the  jury  regarding  the  cause  of  blood  in  a  certain  por- 
tion of  the  body  of  a  person  supposed  to  have  been  mur- 
dered, and  in  the  following  year  similar  testimony  was 
introduced  before  a  jury  concerning  the  cause  of  death.9 

Subjects  of  Inquiry. — In  an  action  for  malpractice  against 
a  physician,  on  a  charge  of  negligence,  a  practitioner  in 
the  profession,  or  one  who  is  skilled  therein,  may  give  his 
opinion,  if  material,  as  to  whether  the  treatment  complained 
of  was  proper  and  in  accordance  with  the  usual  and  cus- 
tomary practice,  under  the  circumstances,  and,  if  not, 


7  Alsop  v.  Bowtrell,  Cro.,  Jac.,  541. 

8  Trial  of  Witches,  6  How.  St.  Tr.,  687,  697. 

9  Trial  of  the  Earl  of  Pembroke,  6  How.  St.  Tr.  1310,  1337;  Rex    v.  Green,   7  How. 
St.  Tr.,  159, 


42  MEDICAL   JUKISPKUDENCE. 

wherein  it  was  not;  whether  the  given  operation  was  skill- 
fully performed ;  whether  the  defendant,  whom  he  has  seen 
operate,  is  a  skillful  operator;  whether  the  specified  condi- 
tion could  have  resulted  from  the  specified  treatment,  or 
course  of  treatment;  whether  under  the  given  conditions 
the  specific  methods,  treatments,  appliances  or  devices 
adopted  were  practical  or  approved  by  the  profession; 
whether  a  given  infection  could  have  been  induced  at  the 
time  or  in  the  manner  alleged ;  whether  the  given  condition 
was  curable  or  incurable ;  whether  the  recovery  was  a  fair, 
usual  recovery;  whether  certain  adverse  results  can,  with 
proper  skill  and  care,  always  be  anticipated  and  avoided; 
whether  an  amputation  was  skillfully  performed,  and  in 
fact  on  any  subject  of  inquiry  at  issue  coming  within  the 
range  of  his  special  skill,  knowledge  and  experience.  His 
opinion  may  be  based  (a)  on  facts  assumed  in  a  hypo- 
thetical question,  or  (b)  on  the  stated  results  of  his  own 
investigation,  or  (c)  on  all  the  evidence  in  the  case,  assum- 
ing it  to  be  true. 

When  the  fact  is  material  to  an  issue  in  court  a  physician 
may  give  his  opinion  whether  the  given  effects  upon  the 
sexual  organs  of  a  female  might  have  resulted  from  her 
ravishment  in  the  manner  stated;  whether  pregnancy  is 
likely  to  occur  as  a  result  of  rape ;  whether  penetration  con- 
stituting rape  has  occurred ;  whether  an  infant  was  prema- 
turely born  and  its  age,  or  both ;  whether  a  person  was  sane 
or  insane  at  a  given  time;  whether  fright  caused  by  being 
put  off  a  train  would  produce  heart  disease  in  a  young 
child;  whether  a  condition  was  the  result  of  previous 
wounds  or  injuries;  whether  death  was  caused  by  drown- 
ing ;  whether  certain  wounds  were  sufficient  to  cause  death ; 
whether  a  certain  clot  of  blood  could  have  existed  twelve 
hours  without  causing  death ;  and  also  the  effects  of  wounds 
and  injuries;  the  permanence  of  an  injury;  the  cause  of 


EXPERT   WITNESS.  43 

death;  the  probable  results  of  disease  and  injuries;  the 
effect  on  a  person  of  a  certain  quantity  of  a  particular  drug, 
and  the  different  effects  from  different  quantities ;  the  cause 
of  a  miscarriage ;  the  effects  of  a  nervous  shock ;  the  gen- 
eral cause  of  an  injury  or  disease;  from  symptoms,  how 
long  a  disease  has  been  running;  where  there  are  several 
concurrent  causes  which  might  have  produced  death,  that 
one  cause  operated  to  the  exclusion  of  the  others  and,  gen- 
erally in  all  medical  and  surgical  matters  where  an  expert 
may  be  able  to  form  an  opinion,  or  draw  a  rational  con- 
clusion. 

Physicians  may  testify  as  medical  experts,  from  given 
symptoms  or  from  examination,  whether  or  not  an  abortion 
has  been  committed  on  a  woman,  and,  in  case  of  death  of 
the  woman,  whether  or  not  death  was  the  result  of  an  abor- 
tion. These  are  matters  peculiarly  within  the  range  of  the 
expert  knowledge  of  physicians.10 

Hypothetical  Question. — A  hypothetical  question  is  one 
which  states  and  assumes  as  true  certain  probative  facts 
appearing  in  evidence,  and  asks  the  opinion  of  the  witness 
thereon  as  to  some  ultimate  fact  in  issue.11 

It  is  well  settled  that  when  the  testimony  of  experts  is 
proper,  counsel  may  assume  the  existence  of  any  state  of 
facts  which  the  evidence  fairly  tends  to  justify,  according 
to  the  theory  of  examining  counsel,  for  the  purpose  of 
eliciting  an  opinion  therefrom.  A  hypothetical  question 
need  not  embrace  all  the  evidence  in  the  case,  but  may  be 
addressed  to  any  reasonable  theory  which  may  be  taken  of 
the  facts.12  Of  course,  the  facts  are  assumed  for  the  pur- 
pose of  the  question  and  the  opinion  thereon.13  The  value 
of  the  opinion  will  depend  somewhat  on  the  completeness 


10  Com.    v.    Leach,    156    Mass.,    99;    Com.    v.   Thompson,    159    Mass.,    56;    Slattery   v. 
People,  76  HI.,  217. 

11  Cent.  Diet. 

12  R.  Co.  v.  Wallace,  202  111.,   129;   Howard  v.  People,   185  111.,  552. 

13  Stearns  v.  Field,  90  N.  Y.,  640. 


44  MEDICAL   JURISPRUDENCE. 

with  which  the  question  contains  all  the  facts  in  evidence, 
whether  for  or  against  the  theory  of  examining  counsel. 
Besides,  the  expert  is  entitled  to  know  all  the  facts  before 
being  called  on  to  express  an  opinion.  But  the  opinion 
must  be  based  upon  the  facts  assumed  in  the  question  re- 
gardless of  what  other  facts  may  be  known  to  the  witness 
at  the  time,  and  where  the  facts  stated  are  not  sufficient  to 
enable  the  witness  to  form  an  intelligent  opinion,  he  should 
so  answer.  Witness  has  a  right  to  explain  that  he  cannot 
form  an  opinion  without  information  on  certain  other  essen- 
tial elements. 

A  hypothetical  question  may  assume  such  facts,  covering 
an  entire  situation,  as  are  reasonably  warranted  by  the  evi- 
dence. As  in  the  case  of  all  other  questions,  its  competency 
must  be  finally  determined  by  the  court.14 

Objective  and  Subjective  Symptoms. — A  physician  who 
has  not  treated  an  injured  party  but  has  examined  him 
solely  as  a  basis  on  which  to  found  an  opinion  to  be  given 
in  a  trial  to  recover  damages  for  injuries  sustained  by  him, 
when  called  as  a  witness,  cannot  testify  to  the  statements 
made  by  the  injured  party  to  him  or  in  his  presence,  during 
such  examination ;  nor  base  an  opinion  upon  the  statements 
of  the  injured  party.  In  other  words,  an  expert  who  has 
examined  the  patient  for  the  sole  purpose  of  testifying 
must  base  his  opinion  on  objective  symptoms,  in  so  far  as 
it  is  based  upon  his  examination,  and  purely  subjective 
symptoms  must  be  disregarded.15 

Cross-Examination  of  Expert. — In  the  direct  examination 
of  an  expert  witness,  the  facts  assumed  in  a  hypothetical 
question  should  be  such  as  are  fairly  within  the  scope  or 
range  of  the  testimony,  or  necessarily  inferable  therefrom. 
However,  upon  cross-examination,  any  fact  which,  in  the 

14  Oborn  v.  State,  143  Wis.,  249. 
is  Eckels  v.  Mutschall,  230  111.,  462. 


EXPEET  WITNESS.  45 

sound  discretion  of  the  court,  is  pertinent  to  the  inquiry, 
whether  testified  to  by  any  one  or  not,  may  be  assumed  in  a 
hypothetical  question  with  a  view  of  testing  the  skill,  learn- 
ing or  accuracy  of  information  of  the  expert,  or  to  ascer- 
tain the  reasonableness  or  expose  the  falsity  of  the  opinion 
he  has  expressed.  Although  a  question  goes  beyond  the 
scope  of  the  evidence  it  may  be  propounded  upon  cross- 
examination  if  its  purpose  is  to  elicit  the  reason  upon  which 
the  expert  bases  an  opinion  expressed  by  him  in  his  exami- 
nation in  chief,  or  to  ascertain  the  extent  of  his  skill  and 
learning  in  the  particular  subject  upon  which  he  assumes 
to  be  an  expert.16  While  medical  works  are  not  admissible 
in  evidence  to  prove  the  things  contained  in  them,  still 
where  a  medical  expert  says  he  bases  his  opinion  upon 
what  a  certain  text-writer  says  on  the  subject,  the  text  may 
be  read  from  on  cross-examination  to  show  the  witness  that 
the  author  does  not  sustain  the  contention  of  the  witness.17 

Medical  Books. — Ordinarily  medical  works,  or  treatises 
on  any  other  inductive  science,  cannot  be  introduced  in  evi- 
dence nor  read  from  by  either  party,  or  by  the  physician 
witness  for  the  purpose  of  showing  the  opinion  of  the  au- 
thors.18 

However,  where  a  physician  says,  either  on  direct  or 
cross-examination,  that  he  bases  his  opinion  upon  what  a 
certain  text-writer  says,  counsel,  on  cross-examination,  may 
show  that  the  author  does  not  sustain  the  witness.19 


16  W.  C.   S.  Ry.  v.  Fishman,   169  111.,   196,   200. 

17  Bloomington   v.    Schrock,    110    111.,    219. 

isYoe  v.   People,   49   111.,   410;    N.   C.   B.   M.   Co.   v.   Monka,    107   111.,   340;    Com.   v. 
Brown,   121  Mass.,   69. 

19  Bloomington  v.   Schrock,    110  111.,   219    (Dicta). 


CHAPTEE  V. 
HEARSAY. 

Dying  Declarations. — A  dying  declaration  is  a  statement 
of  material  facts  concerning  the  cause  and  circumstances 
of  a  homicide,  made  by  the  victim  under  a  solemn  convic- 
tion of  impending  death. 

HEARSAY. — Under  the  rules  of  evidence  in  our  jurispru- 
dence, hearsay  testimony  is  excluded.  It  comes  clothed  in 
too  much  uncertainty  to  give  it  any  probative  force,  and 
except  in  rare  cases  it  is  not  admissible  for  any  purpose. 
This  rule  of  law  is  based  upon  our  habit  of  reasoning  and, 
therefore,  the  law  indulges  no  presumption  or  inference  of 
the  truth  of  an  issue  merely  because  a  witness  states  that 
some  one,  not  before  the  court,  asserted  its  existence  medi- 
ately or  immediately  to  the  witness.  It  is  the  policy  of  the 
law  to  exclude  from  the  evidence  the  statements  of  a  party 
who  is  not  before  the  court  to  be  put  under  oath,  cross- 
examined,  and  the  source  and  credibility  of  his  information 
inquired  into.1 

It  is  a  rule  of  common  law,  in  criminal  cases,  to  which 
there  are  but  few  exceptions,  that  witnesses  must  (a)  be 
produced  in  open  court,  (b)  confront  the  defendant,  and 
(c)  give  their  testimony  under  oath  or  on  affirmation.  It 
will  be  observed  that  the  admission  of  dying  declarations 
violates  these  rules ;  the  defendant  is  not  in  court  or  under 
oath  and,  usually,  the  statement  is  not  made  in  the  presence 
of  the  accused. 

REASONS  FOB  THE  EXCEPTION. — This  well  recognized  ex- 
ception to  the  rule  excluding  hearsay  evidence  is  made  (a) 

i  Grubey  v.  National  Bank,  133  111.,  79 ;  Kent  v.  Mason,   79  111.,  540. 

46 


HEARSAY.  47 

because  of  the  necessity  of  the  situation  and  (b)  because  of 
the  strong  probability  that,  under  the  circumstances,  the 
declaration  is  true.  The  Supreme  Court  of  Illinois  gives 
a  concise  and  able  statement  of  the  reason  of  the  rule,  as 
follows : 

"The  statements  of  the  deceased  as  to  the  cause  of  the 
injury  from  which  death  finally  results,  when  dying  decla- 
rations, within  the  meaning  of  the  law,  are  admitted  in  evi- 
dence on  the  ground  of  necessity,  and  the  rule  under  which 
they  are  admitted  forms  an  exception  in  the  law  of  evidence. 
The  accused,  under  the  rule,  has  not  the  benefit  of  *  meeting 
the  witnesses  against  him  face  to  face';  a  constitutional 
right  in  all  criminal  trials,  with  this  solitary  exception. 
He  is  deprived  of  the  security  of  an  oath,  attended  with 
consequences  of  temporal  punishment  for  perjury.  He  is 
deprived  of  the  great  safeguard  against  misrepresentation 
and  misapprehension, — the  power  of  cross-examination. 
The  evidence  is  hearsay  in  its  character ;  the  statements  are 
liable  to  be  misunderstood  and  to  be  misrepeated  upon  the 
trial,  and  the  evidence  goes  to  the  jury  with  surroundings 
tending  to  produce  upon  the  mind  emotions  of  deep  sym- 
pathy for  the  deceased  and  of  involuntary  resentment 
against  the  accused.  It  is  vain  to  attempt  to  disguise  the 
infirmities  and  imperfections  of  the  human  mind  and  its 
susceptibilities  to  false  impressions  under  circumstances 
touching  the  heart  and  exciting  the  sympathies,  and  the  law 
has  wisely,  in  case  of  dying  declarations,  required  all  the 
guaranties  of  truth  the  nature  of  the  case  admits  of.  The 
principle  upon  which  such  declarations  are  admitted  is,  that 
they  are  made  in  a  condition  so  solemn  and  awful  as  to 
exclude  the  supposition  that  the  party  making  them  could 
have  been  influenced  by  malice,  revenge  or  any  conceivable 
motive  to  misrepresent,  and  when  every  inducement,  emo- 
tion and  motive  is  to  speak  the  truth.  In  other  words,  in 


48  MEDICAL   JURISPRUDENCE. 

view  of  impending  death,  and  under  the  sanctions  of  a  moral 
sense  of  certain  and  just  retribution.  A  dying  declaration, 
therefore,  is  a  statement  made  by  a  party,  relating  to  the 
cause  of  the  injury  of  which  he  afterwards  dies,  under  the 
fixed  belief  and  moral  conviction  that  his  death  is  impend- 
ing and  certain  to  follow  almost  immediately,  without  oppor- 
tunity for  repentance,  and  in  the  absence  of  all  hope  of 
avoidance;  when  he  has  despaired  of  life,  and  looks  to  death 
as  inevitable  and  at  hand."  2 

ESSENTIAL  CONDITIONS  TO  THE  ADMISSIBILITY 
OF  SUCH  STATEMENT: 

1.  The  statement  must  be  made  in  the  immediate  pros- 
pect of  death,  and  death  must  be  imminent  both  as  a  matter 
of  fact  and  of  declarant's  impressions. 

2.  The  cause  of  death  must  be  the  subject  of  judicial 
inquiry;  it  cannot  be  used  on  a  trial  for  robbery,3  nor  for 
perjury,4  nor  for  abortion,5  nor  for  rape.6 

3.  The  declaration  must  refer  to  the  circumstances  of  the 
injury. 

4.  Death  must  have  resulted  without  delay  from  the  in- 
jury. 

5.  The  declarant  must  have  been  competent  to  testify  to 
the  facts  in  the  statement,  if  he  were  living. 

6.  The  statement  is  admissible  only  to  the  extent  the 
declarant  could  testify. 

7.  The  declaration  must  have  been  complete  in  itself. 

8.  The  declarant  must  have  been  rational  at  the  time  of 
making  the  statement. 

9.  The  declaration  may  have  been  by  signs,  in  response  to 
questions,  or  otherwise. 


2  Starkey  v.  People,  17  ID.,  17,  20. 

3  Rex  v.  Lloyd,  4  C.  &  P.,  233. 

4  Rex  v.  Mead,  2  B.  &  C.,  605. 

5  Rex  v.  Hutchinson,  2  B.  &  C.,  608 — note. 

6  Johnson  v.  State,  50  Ala.,  456. 


HEARSAY.  49 

10.  The  competency  of  such  statements  is  a  matter  to  be 
first  determined  by  the  court,  but  when  once  admitted  the 
weight  of  the  same  is  for  the  jury. 

If  the  statement  is  in  writing  the  instrument  should  be 
produced,  if  possible;  if  the  statement  was  oral,  witnesses 
may  repeat  the  same,  though  they  are  able  to  give  only  the 
substance. 

ADMISSIBILITY. — The  question  of  the  admissibility  of  a 
statement  offered  as  a  dying  declaration  is  addressed  to  the 
sound  discretion  of  the  court,  whose  duty  it  is  to  inquire 
into  the  circumstances  of  the  statement,  the  condition  of  the 
declarant's  health  and  mind  at  the  time,  the  time  of  death 
with  relation  to  the  injury,  the  nature  of  the  declaration 
itself,  the  relation  of  the  injury  to  the  death,  the  persons 
who  were  present,  the  means  by  which  it  was  communicated, 
and  from  all  these  facts  and  circumstances  determine 
whether  the  declaration  shall  be  admitted.  Once  admitted, 
its  weight  and  probative  force  are  matters  exclusively  for 
the  jury. 

Medical  men  are  frequently  in  positions  where  statements 
of  this  character  are  made  to  them.  The  entire  statement 
of  the  deceased,  and  what  was  said  to  him  or  in  his  presence 
at  the  time  should  be  reduced  to  writing  without  delay  in 
order  to  preserve  the  statement  for  court,  should  the  matter 
at  any  time  become  the  subject  of  judicial  inquiry. 

Physicians  are  frequently  called  (frequently  is  used  ad- 
visedly) to  attend  women  who  are  suffering  from  the  results 
of  criminal  abortions.  In  such  a  case  the  patient  sometimes 
discloses  to  the  physician  the  circumstances  of  the  opera- 
tion. When  made  for  the  purpose  of  treatment,  while  the 
patient  has  hopes  of  recovery,  such  statements  do  not 
amount  to  dying  declarations  and  the  physician,  after  the 
death  of  his  patient,  as  the  result  of  the  illegal  act,  will  not 
be  permitted  to  repeat  them  from  the  witness  stand  in  the 


50  MEDICAL   JURISPRUDENCE. 

prosecution  for  murder  of  the  person  supposed  to  have  per- 
formed the  operation.  In  these  cases,  the  medical  profes- 
sion owes  it  to  the  public  to  secure,  wherever  possible,  state- 
ments from  such  patients  after  they  are  thoroughly  im- 
pressed with  the  idea  that  they  cannot  live  and  that  death 
is  certain  and  at  hand,  as  to  the  nature  and  circumstances 
of  the  operation,  and  the  names  of  the  parties  who  were 
active  in  the  performance  thereof.  Often  a  dying  declara- 
tion is  the  only  direct  evidence  of  the  relation  of  the  defend- 
ant to  the  crime.  Of  course,  the  physician  should  first 
satisfy  himself  of  the  good  faith  of  the  patient  and  that  she 
is  not  actuated  by  malice  or  any  ulterior  motives.  The 
statement  should  be  sufficiently  explicit  to  connect  the  sup- 
posed offender  with  the  intent  to  produce  an  abortion.  The 
mere  statement  that  the  defendant  treated  her,  or  even  that 
he  used  instruments  on  her,  unless  corroborated  by  other 
incriminating  evidence,  would  not  be  sufficient  to  sustain  a 
conviction.  What  the  defendant  did  may  have  been  for  the 
purpose  of  relieving  a  condition  inevitably  tending  to  pro- 
duce a  miscarriage.  Granting  that  the  crime  exists,  the 
statement  should  disclose  facts  and  circumstances  inconsist- 
ent with  the  innocence  of  the  accused,  and  should  character- 
ize his  conduct  as  criminal  and  improper  on  any  hypothesis 
of  good  faith.  When  called  on  a  case  where  abortion  or 
attempted  abortion  is  suspected,  a  physician  should  imme- 
diately take  every  available  precaution  which  will  have  a 
tendency  to  show  that  he  was  not  the  party  responsible  for 
the  unnatural  condition.  A  very  good  course  is  to  call  in 
another  physician  in  consultation  and  together  get  as  much 
of  the  history  of  the  case  as  the  patient  can  be  induced  to 
disclose.  Of  course  the  physician  can  always  refuse  to  take 
the  case,  but  even  then  the  circumstances  of  his  visit  or  of 
the  would-be  patient's  call  may  be  such  as  to  cast  suspicion 
on  him  or  give  excuse  for  the  tongue  of  gossip  to  wag  and, 


HEAESAY.  51 

therefore,  wherever  possible,  this  result  should  be  guarded 
against  at  the  time. 

Res  Gestae. — Spontaneous  exclamations  and  statements 
made  at  the  time  of  the  occurrence  of  an  event  which  is  the 
subject  of  judicial  inquiry,  are  called  res  gesta  and  are  ad- 
missible in  evidence  as  being  a  part  of  the  incident  under 
consideration.  These  statements  cover  a  much  broader 
field  than  dying  declarations.  Some  courts  have  admitted 
statements  made  to  physicians,  including  exclamations  of 
pain  and  suffering,  by  patients  in  the  course  of  professional 
examination  on  the  ground  that  they  were  a  part  of  the  res 
gestce,  in  a  case  where  the  physical  condition  of  the  patient 
was  the  subject  of  inquiry.  When  an  expert  is  called  upon 
to  give  his  opinion  as  to  the  cause  of  his  patient's  condition 
at  a  particular  time,  he  may  state  what  his  patient  said  to 
him  in  describing  his  bodily  condition,  if  said  under  circum- 
stances which  free  it;  from  all  suspicion  of  being  spoken  with 
reference  to  future  litigation  and  which  give  it  the  character 
of  res  gestcB.1 

Adverse  Statements  in  the  Presence  of  a  Party. — If  state- 
ments against  a  party's  interest  are  made  in  his  presence 
and  hearing,  under  circumstances  that  he  ought  to  refute 
then,  but  does  not,  the  incident  naturally  raises  an  inference 
adverse  to  his  interest  or  contention.  In  the  administra- 
tion of  justice  courts  recognize  this  rule  of  logic  and  when 
the  person  whose  interest  has  been  assailed  is  a  party  to  the 
suit,  the  statements  may  be  introduced  in  evidence,  together 
with  the  fact  of  his  silence  or  other  attitude  denoting 
acquiescence  or  admission.  Thus,  the  failure  of  a  physician 
to  reply  to  the  charge  of  his  patient  that  he  caused  her  to 
abort  may  be  shown.8 

Statements  .Against   Interest. — Where   a  party   makes 


7  I.  C.  R.  B.  Co.  v.  Button,  42  111.,  438,  441. 
S  Com.    v.   Brown,    121   Mass.,    69. 


52  MEDICAL    JUKISPKUDENCE. 

statements  or  admissions  against  his  interests,  and  the  mat- 
ter thereafter  becomes  a  subject  of  inquiry  in  court  in  a  case 
to  which  he  is  a  party,  his  statements  or  admissions  are 
competent  evidence  for  the  purpose  of  establishing  the  fact 
in  accordance  with  the  statements  or  admissions.  Of 
course,  no  such  evidence  is  conclusive  and  the  party  is  not 
precluded  from  making  an  explanation. 

Statements  by  Patient  to  Physician. — Statements  by  a 
patient  to  his  physician  are  divided  into  two  classes,  (a) 
when  made  to  assist  the  physician  in  diagnosing  his  case  for 
purposes  of  testimony  in  court  or  other  purposes  not  re- 
lated to  the  treatment  of  the  patient,  and  (b)  those  state- 
ments which  are  made  during  the  progress  of  diagnosis  to 
enable  the  physician  properly  to  treat  the  patient.  It  has 
been  held  that  the  statements  of  the  patient  to  his  physician 
relative  to  his  condition  and  the  cause  and  circumstances 
thereof,  made  in  good  faith,  for  the  purposes  of  profes- 
sional treatment  of  such  condition,  are  not  hearsay  if  they 
should  later  become  relevant  to  an  issue  of  a  suit  in  court. 
Even  though  such  statements  are  favorable  to  the  conten- 
tion of  the  patient  in  a  suit  to  which  he  is  a  party,  it  has 
been  considered  that  the  practitioner  may  testify  thereto 
and  repeat  them  from  the  witness  stand.9 

Relative  to  this  general  subject  Chief  Justice  Bigelow 
said  that  the  admissibility  of  such  statements,  when  made 
for  the  purpose  of  receiving  medical  advice,  "is  an  excep- 
tion to  the  general  rule  of  evidence  which  has  its  origin  in 
the  necessity  of  the  case.  To  the  argument  against  their 
competency  founded  on  the  danger  of  deception  and  fraud, 
the  answer  is  that  such  representations  are  competent  only 
when  made  to  a  person  of  science  and  medical  knowledge, 
who  has  the  means  and  opportunity  of  observing  and  ascer- 
taining whether  the  statements  and  declarations  correspond 


9  Shearer  v.  Buckley,  31  Wash.,  370;  72  Pac.,  76. 


HEARSAY.  53 

with  the  condition  and  appearance  of  the  person  making 
them,  and  the  present  existing  symptoms  which  the  eye  of 
experience  and  skill  may  discover.  Nor  is  it  to  be  forgotten 
that  statements  made  to  a  physician  for  the  purpose  of  med- 
ical advice  and  treatment  are  less  open  to  suspicion  than  the 
ordinary  declarations  of  a  party.  They  are  made  with  a 
view  to  be  acted  on  in  a  matter  of  grave  personal  concern- 
ment, in  relation  to  which  the  party  has  a  strong  and  direct 
interest  to  adhere  to  the  truth."  10 

PAIN  AND  SUFFERING. — Some  courts  limit  such  statement 
to  questions  of  pain  and  suffering.  In  Illinois,  it  has  been 
held  that  declarations  made  by  an  injured  party  to  his  at- 
tending physician  are  admissible  in  evidence  when  they 
relate  to  the  part  of  his  body  injured,  his  sufferings,  symp- 
toms and  the  like,  but  not  if  they  relate  to  the  cause  of  his 
injury.11 

Such  statements  are  admissible,  (a)  when  made  to  a 
physician  during  treatment  or  upon  an  examination,  not 
for  purpose  of  testifying  in  litigation  then  pending,  (b) 
when  they  refer  to  pains  immediately  connected  with  the 
injury,  and  (c)  when  they  are  in  the  nature  of  res  gesta.12 

When  not  made  for  professional  treatment,  as  when  made 
during  an  examination  of  the  patient  with  a  view  of  quali- 
fying the  physician  to  testify  in  a  pending  suit,  statements 
of  pain  and  suffering  to  a  physician  by  his  patient  are  not 
admissible.13 

A  physician,  when  asked  to  give  his  opinion  as  to  the  cause 
of  the  patient's  condition  at  a  particular  time,  must  neces- 
sarily in  forming  his  opinion  be  to  some  extent  guided  by 
what  the  sick  person  may  have  told  him  in  detailing  his 
pains  and  sufferings.  This  is  inevitable,  and  not  only  the 


10  Barber  v.  Merriam,   11  Allen,   322. 

11  Globe  Ace.  Ins.  Co.  v.  Gerisch,   163  111.,   625. 

12  \V.  C.  S.  R.  Co.  v.  Carr,   170  111.,  478. 

13  R.   Co.  v.  Carr,    170  111.,   478,   483. 


54  MEDICAL   JURISPRUDENCE. 

opinion  of  the  expert,  founded  in  part  upon  such  data,  is 
receivable  in  evidence,  but  he  may  state  what  his  patient  said 
in  describing  his  bodily  condition,  if  said  under  circum- 
stances which  free  it  from  all  suspicion  of  being  spoken 
with  reference  to  future  litigation,  and  which  give  it  the 
character  of  res  gestce.1* 


141.  C.   R.   Co.  v.   Sutton,  42   111.,   438,   441. 


CHAPTER  VI. 
PRIVILEGED  COMMUNICATIONS. 

Admissibility  of  Adverse  Statements. — It  is  a  rule  of  evi- 
dence that  incriminating  or  adverse  statements  freely  made, 
out  of  court,  by  a  party  to  a  suit,  may  be  introduced  against 
him  by  his  adversary  if  they  are  pertinent  to  the  issue.  The 
statements  may  be  pertinent  by  being  an  admission  of  the 
fact  in  controversy,  or  of  some  collateral  fact  tending  to 
prove  the  issue,  or  by  being  in  contradiction  of  statements 
by  the  witness  on  the  witness  stand  and,  therefore,  tending 
to  impeach  his  testimony.  From  motives  of  public  policy, 
certain  exceptions  to  the  rule  have  been  introduced  for  the 
benefit  of  the  party  making  the  disclosures. 

Confidential  Communications. — Confidential  communica- 
tions between  attorney  and  client,  priest  and  penitent, 
physician  and  patient  and  husband  and  wife,  sometimes 
relate  to  matters  which  then  are,  or  subsequently  become, 
the  subject  of  judicial  inquiry.  When,  by  law,  these  com- 
munications are  excluded  from  disclosure  in  evidence  they 
are  termed  privileged  communications.  When  the  disclo- 
sure of  such  communications  is  forbidden  by  the  law,  it  is 
upon  grounds  of  public  policy  on  the  presumption  that 
* '  greater  mischief  would  probably  result  from  requiring  or 
permitting  their  admission  than  from  wholly  rejecting 
them."1 

AT  COMMON  LAW. — Under  the  common  law  this  privilege 
extended  only  to  attorney  and  client. 

STATUTES. — The  exemption  has  been  enlarged  by  statutes 


1  1  Greenleaf  on  Evidence,   Sec.  236. 

55 


56  MEDICAL   JURISPRUDENCE. 

in  many  states  and  countries  to  include  communications  be- 
tween physician  and  patient,  priest  and  penitent  and  hus- 
band and  wife. 

PROVISIONS. — The  statutes  referring  to  physicians  usually 
designate  the  parties,  disclosures  to  whom  shall  be  privi- 
leged, as  "physicians  and  surgeons  in  the  practice  of  their 
profession,"  those  "practicing  physic  and  surgery,"  and 
other  similar  expressions.  The  student  is  referred  to  the 
statutes  in  which  he  is  interested  for  their  special  pro- 
visions. 

PURPOSES. — The  purpose  of  these  statutes  is  to  throw 
around  such  disclosures  as  the  patient  is  required  to  make 
for  the  necessary  information  of  his  attending  physician 
the  cloak  of  secrecy;  the  prime  object  being  to  invite  confi- 
dence in  respect  to  ailments  and  the  causes  thereof,  in  order 
that  the  patient  may  get  the  fullest  measure  of  benefit  from 
the  professional  services.  Where  the  relation  is  such  that 
no  public  necessity  or  propriety  exists  for  encouraging  the 
reposing  of  confidence  the  reason  for  the  privilege  fails  and 
the  law  does  not  apply.  If  there  is  no  justification  for  dis- 
closing secret  maladies  and  their  history  and  causes,  there 
is  no  confidence  to  be  abused  and  there  is  no  privilege. 

INTERPRETATION. — In  spirit,  such  statutes  do  not  usually 
include  cases  where  the  malady  is  apparent  to  every  one  on 
inspection,  but  in  their  application  they  are  generally  con- 
strued to  apply  to  all  information  necessarily  disclosed  or 
discovered  upon  any  investigation  which  was  necessary  to 
the  proper  treatment  of  the  patient.  They  protect  with  the 
mantle  of  privilege  whatever,  in  order  to  enable  the 
physician  properly  to  prescribe,  was  disclosed  to  any  of  his 
senses  and  which  was  in  any  way  brought  to  his  knowledge 
for  that  purpose ;  that  is  to  say,  any  information  which  was 
necessary  to  enable  the  physician  to  prescribe  for  the 
patient  as  a  physician,  or  to  perform  any  surgical  operation 


PRIVILEGED   COMMUNICATIONS.  57 

for  him  as  a  surgeon,  is  privileged.2  Under  such  statutes 
any  information  disclosed  to  a  physician  by  a  patient  to 
enable  him  properly  to  prescribe  for  the  patient,  or  discov- 
eries made  by  the  physician  in  the  course  of  his  examination 
therefor,  cannot  be  revealed  on  the  witness  stand  by  the 
physician,  and  the  privilege  usually  extends  to  persons 
present  during  the  interview.3  Where  no  proof  appears 
to  the  contrary,  the  court  will  presume  that  the  communica- 
tion of  a  physical  condition  and  of  all  matters  pertaining 
thereto,  was  necessary  to  enable  the  physician  properly  to 
treat  the  patient.  Since  the  examination  is  with  the  consent 
of  the  patient,  any  knowledge  obtained  thereby  is  construed 
to  be  a  communication.4 

Incidental  Information. — Knowledge  which  was  not  ac- 
quired for  the  purpose  of  treatment,  but  is  obtained  inci- 
dentally without  special  reference  to  the  relation,  is  not 
usually  exempt  from  disclosure.  Thus,  a  physician  is 
called  to  treat  a  party  soon  after  an  injury,  and  by  his  own 
observation  or  the  admission  of  the  patient,  discovers  that 
the  patient  is  under  the  influence  of  liquor,  it  has  been  held 
that  the  knowledge  of  such  fact  is  not  protected  from  dis- 
closure because  the  disclosure  was  not  necessary  to  the 
proper  treatment  of  the  injury  and  the  physician  was  not 
required  to  make  an  investigation  as  to  intoxication  in  order 
properly  to  diagnose  the  trouble  and  dress  the  wound. 
Such  discovery  or  disclosure  is  a  mere  incident  to  the  treat- 
ment.5 Where  the  disclosure  is  purely  voluntary  and  man- 
ifestly not  necessary  for  the  purpose  of  the  employment,  the 
privilege  will  not  apply.  Thus,  where  a  woman  about  to 
be  delivered  of  a  bastard  child,  said  to  her  physician: 
' '  The  father  of  my  child  never  promised  to  marry  me, ' '  the 


2  Campau  v.  North,  39  Mich.,  606,  609 ;   Dittrich  v.  Detroit,  98  Mich.,  245. 

3  Campau  v.  North,   39   Mich.,   606 ;   Edington  v.  Insurance  Co.,   67   N.  Y.,    185. 

4  Williams  v.  Johnson,   112  Ind.,  273;  Prader  v.  Ace.  Assn.,  95  la.,   149. 

5  Note  to  Dittrich  v.  Detroit,  98  Mich.,  245. 


58  MEDICAL   JUKISPKUDENCE. 

statement  was   held   not   to   come   within   the  privilege.6 

Patient  Need  Not  be  Party  to  Suit. — The  purpose  of  the 
privilege  does  not  relate  to  the  nature  or  circumstances  of 
the  litigation  and  therefore  the  privilege  prevails  whether 
the  patient  is  or  is  not  a  party  to  the  suit. 

Statement  by  Physician  to  Patient. — A  statement  of  fact 
or  opinion  by  a  physician  to  his  patient  in  the  course  of  pro- 
fessional treatment  based  upon  a  narration  of  facts  by  the 
patient  for  the  purpose  of  treatment,  or  upon  a  physical 
examination  of  the  patient  by  the  physician  for  that  purpose 
is  privileged.  If  the  physician  were  permitted  to  disclose 
what  he  told  the  patient  as  to  the  character  of  his  ailment, 
the  protection  contemplated  by  the  statute  would  often  be 
defeated,  for,  otherwise,  by  indirection,  a  disclosure  of  the 
nature  of  the  disease  could  readily  be  effected.7  For  the 
same  reason  the  privilege  attaches  to  statements  by  one 
physician  to  another  in  the  presence  of  the  patient  during  a 
consultation.8 

Publishing  Operation. — A  physician  is  not  justified  in 
publishing  or  causing  to  be  published,  without  the  consent 
of  his  patient,  an  article  describing  a  surgical  operation 
wherein  he  names  or  otherwise  identifies  the  patient.9  In 
Michigan,  at  the  time  of  this  opinion,  there  was  a  statute 
making  a  communication  from  patient  to  physician  priv- 
ileged from  disclosure  in  court,  but  the  inhibition  will  be 
equally  true  if  there  is  anything  in  the  article  which  will 
tend  to  humiliate  the  patient  or  bring  her  into  public 
ignominy  or  disgrace.  If  there  is  anything  in  the  operation 
of  interest  to  the  public  or  benefit  to  the  profession,  it  cer- 
tainly can  be  presented  without  identifying  the  patient. 

Imposing  on  Privacy. — A  physician  took  with  him  a  non- 


e  Collins  v.  Mack,  31  Ark.,  684. 

7  Bryant  v.  M.  W.  A.,  86  Neb.,  372,  378;  21  A.  0.,  365. 

8  Prader  v.  N.  M.  Ace.  Ass'n,  95  la.,  149. 

9  Dictum  by  James  V.  Campbell,  in  Sailings  v.  Shakespear,  46  Mich.,  408,  412. 


PKIVILEGED   COMMUNICATIONS.  59 

professional  unmarried  man  when  attending  a  woman  in 
confinement,  there  being  no  real  need  of  his  services  to  assist 
the  physician  either  in  making  the  trip  or  the  delivery.  The 
patient  and  her  husband  thinking  him  to  be  a  medical  asso- 
ciate of  the  physician  made  no  objection  to  his  presence  in 
the  room.  In  an  action  by  the  patient  for  the  deceit,  it  was 
considered  that  both  the  physician  and  the  intruder  were 
liable.10 

Waiver  of  Privilege. — The  courts  usually  construe  these 
privileges  as  being  for  the  benefit  of  the  patient  and  that 
the  patient  can  waive  the  privilege  if  he  desires ;  but  unless 
he  waives  it,  the  lips  of  the  physician  are  forever  sealed, — 
( '  the  seal  of  the  law  once  fixed  upon  them,  remains  forever, 
unless  removed  by  the  party  himself  in  whose  favor  it  was 
there  placed."  In  some  jurisdictions  the  courts  hold  that, 
as  it  is  a  personal  privilege,  it  must  be  claimed  by  the 
patient,  otherwise  the  courts  will  enforce  disclosure 
thereof.11 

Where  the  patient  sues  the  physician  for  malpractice  or 
defends  a  suit  by  the  physician  for  his  fee,  on  the  ground  of 
malpractice,  the  rule  of  privilege  does  not  lie  as  to  all  mat- 
ters connected  with  the  treatment  or  operation  in  reference 
to  which  malpractice  is  alleged,  because  by  raising  the  issue 
of  improper  treatment  or  operation,  he  is  conclusively  pre- 
sumed to  waive  the  privilege.  The  patient  will  not  be  per- 
mitted to  raise  an  issue  and  at  the  same  time  bar  the  phy- 
sician's defense  thereto.  But  where  the  defense  to  a  suit 
by  a  physician  for  his  services  is  the  general  issue,  that  is, 
a  general  denial  of  the  services  and  of  their  value,  the  char- 
acter and  propriety  of  the  treatment  are  not  in  issue  and 
the  privilege  will  apply. 

Privilege  is  an  Entirety. — The  privilege  is  an  entirety 


10  DeMay  v.  Roberts,  46  Mich.,  160. 

11  Railroad  Co.  v.  Martin,  41  Mich.,  667. 


60  MEDICAL    JURISPRUDENCE. 

and  a  waiver  of  the  benefit  of  a  protecting  statute  is  a 
waiver  of  the  disqualification  of  the  physician  as  to  the 
entire  course  of  treatment  or  transaction.12 

Autopsy. —  (A)  BY  ATTENDING  PHYSICIAN. — Where  the 
attending  physician  performs  an  autopsy  on  his  late  patient, 
at  the  instance  of  the  defendant  charged  with  negligence 
causing  the  death,  and  over  the  objection  of  the  plaintiff 
in  the  case,  he  will  not  be  permitted  to  disclose  on  the  trial, 
either  the  results  of  the  autopsy,  or  his  conclusions  there- 
from, as  to  the  cause  of  death.13 

As  to  the  opinion,  at  least,  it  would  necessarily  be  founded 
in  part  upon  information  disclosed  by  the  relation  of  phy- 
sician and  patient  during  the  life  of  the  latter  and,  there- 
fore, should  be  privileged  from  disclosure. 

(B)  BY  STRANGER. — Where  the  autopsy  was  held  by  a 
physician  who  had  not  attended  the  deceased  during  his  life- 
time and  where  the  cause  of  death  was  the  subject  of  inquiry, 
the  physician  was  permitted  to  testify  to  the  results  of  the 
autopsical  examination  and  to  give  his  opinion  as  to  the 
cause  of  death.14  This  decision  is  based,  in  part,  upon  the 
wording  of  the  statute  and,  apparently,  the  ruling  would 
have  been  the  same  had  the  deceased  in  his  lifetime  been 
the  patient  of  the  physician  at  the  time  covered  by  the 
inquiry.  The  court  says : 

"A  dead  man  is  not  a  patient  capable  of  sustaining  the 
relation  of  confidence  toward  his  physician  which  is  the 
foundation  of  the  rule  given  in  the  statute,  but  is  a  mere 
piece  of  senseless  clay  which  has  passed  beyond  the  reach  of 
human  prescription,  medical  or  otherwise. ' ' 

Duty  of  the  Physician. — When  called  upon  to  make  a  dis- 
closure which  may  be  in  violation  of  the  confidence  of  his 
patient,  the  physician  should  claim  the  privilege  and  give 

12  Bryant  v.  M.  W.  A.,  86  Neb.,  372,  378. 

13  Thomas  v.  Bryan,  168  Mich.,  593. 

14  Harrison  v.  Sutter  St.  R.  R.  Co.,  116  Cal.,  156. 


PBIVILEGED   COMMUNICATIONS.  61 

the  opinion  only  when  the  court  orders  him  to  answer; 
otherwise  he  would  be  justly  subjected  to  criticism.  In 
passing  upon  a  case  involving  this  question,  the  able  Judge 
Cooley  observed: 

"This  evidence  ought  not  to  be  passed  over  without  re- 
mark. It  is  surprising  evidence  for  many  reasons.  One 
of  these  is  that  the  physician  had  no  business  to  give 
it.  ...  Every  reputable  physician  must  know  of  the  exist- 
ence of  this  statute  and  he  must  know  from  its  very  terms, 
as  well  as  from  the  obvious  reasons  underlying  it,  that  it 
is  not  at  his  option  to  disclose  professional  secrets.  A  rule 
is  prescribed  which  he  is  not  to  be  allowed  to  violate;  a 
privilege  is  created  which  does  not  belong  to  him  but  to 
his  patient,  and  which  continued  indefinitely  and  can  be 
waived  by  no  one  but  the  patient  himself."  15 

The  Privilege  is  Not  to  Protect  Criminals. — According  to 
the  great  weight  of  authority,  the  defendant  in  a  criminal 
prosecution  has  no  right  to  object  to  the  testimony  of  a 
physician  in  reference  to  the  victim  of  the  crime  on  the 
ground  that  the  information  is  privileged.16  Also  while 
the  statute  protects  with  the  mantle  of  privilege,  communi- 
cations by  one  physician  to  another,  in  the  presence  of  the 
patient  during  a  consultation,  still,  where  such  statement 
incriminates  the  speaker  with  reference  to  an  abortion 
which  had  been  performed  on  the  patient,  and  the  speaker 
is  subsequently  a  defendant  to  a  suit  relating  to  the  abor- 
tion, the  privilege  of  the  statute  will  not  avail.17  But  in  a 
trial  for  abortion,  where  the  woman  survives,  a  physician 
who  treated  her  will  not  be  permitted  to  disclose  her  com- 
munications.18 

Criminal  Purposes. — If  communications  are  made  to  a 

15  Storrs  v.  Scougale,  48  Mich.,  387. 

16  People  v.  West,  106  Cal.,  89;  Pierson  v.  People  79  N.  Y.,  424;  Siefert  v.  State,  160 
Ind.,  464;   State  v.  Law,   150  Wis.,   313. 

IT  State  v.   Smith,   99   la.,   29. 

18  People  v.  Murphy,   101  N.  Y.,   126. 


62  MEDICAL   JURISPRUDENCE. 

physician  for  the  purpose  of  furthering  some  criminal  de- 
sign or  conspiracy,  or  some  other  violation  of  law,  they 
would  not  be  privileged.19 

The  solicitation  by  a  woman  of  a  physician  to  perform 
an  abortion  on  her,  or  to  give  her  medicine  for  that  purpose, 
would  not  be  privileged  and,  should  the  fact  ever  become 
material  to  an  issue  in  court,  he  would  be  a  competent  wit- 
ness to  testify  thereto. 

Presumption  of  Good  Faith. — In  the  absence  of  evidence 
to  the  contrary,  the  court  will  presume  that  the  communica- 
tion was  for  a  lawful  purpose. 


19  Hewitt  v.   Prime,    21  Wend.,   79. 


CHAPTER  VII. 

LICENSE. 

Issuance. 

Common  Law  Right  to  Practice  Medicine. — At  common 
law  any  one  might  practice  medicine  or  perform  surgical 
operations.  As  a  matter  of  law  no  preliminary  prepara- 
tion and  no  license  to  practice  were  required.  This  condi- 
tion was  also  true  within  the  jurisdiction  of  the  civil  law. 
Of  course  the  practitioner  was  responsible  to  his  patient 
for  the  exercise  of  an  ordinary  and  reasonable  degree  of 
skill  and  knowledge,  as  measured  by  the  standards  of  pro- 
ficiency and  professional  learning  at  the  time ;  but  the  State 
did  not  then  attempt  to  prohibit  incompetent  persons  from 
practicing  nor  to  regulate  the  standard  of  proficiency  by 
establishing  a  minimum  qualification.  The  common  law 
left  it  to  natural  selection  as  it  were,  to  eliminate  the  in- 
competent. But  such  method  of  elimination  did  not  always 
protect  the  weak  and  confiding  and  the  incompetence  was 
often  not  discovered  until  the  patient  was  in  his  grave. 
The  experience  of  the  ages  was  that  civil  and  even  criminal 
responsibility  for  injurious  consequences  was  not  sufficient 
to  deter  the  adventurer,  the  parasite,  the  ignoramus,  the 
impostor,  from  attempting  the  practice  of  medicine,  and 
governmental  control  became  indispensable. 

Liberty  to  Pursue  Calling. — To  adopt  and  follow  such 
lawful  pursuit  as  he  may  see  fit  when  not  injurious  to  the 
community,  is  a  fundamental  right  and  privilege  of  every 
American  citizen.1  It  is  undoubtedly  the  right  of  every 

i  Frorer  v.  People,  141  111.,  171. 

63 


64  MEDICAL   JURISPRUDENCE. 

citizen  of  the  United  States  to  follow  any  lawful  calling 
he  may  choose,  subject  only  to  such  restrictions  as  are  im- 
posed upon  all  persons  of  like  age,  sex  and  condition.  This 
right  may,  in  many  respects,  be  considered  as  a  distinguish- 
ing feature  of  our  Eepublican  institutions.  Here,  all  voca- 
tions are  open  to  every  one  on  like  condition,  but  no  one 
has  a  right  to  practice  any  profession,  without  the  requisite 
knowledge  and  skill.2 

Professional  Practice  Is  Not  Property. — The  right  to 
continue  the  practice  of  a  profession  is  often  of  great  value 
and  cannot  be  arbitrarily  taken  away  any  more  than  you 
can  take  away  real  or  personal  property,  still  such  right 
is  not  property,  within  the  strict  meaning  of  the  term,  and 
does  not  amount  to  a  contract  with  the  State,  within  the 
meaning  of  these  constitutional  terms. 

Public  Welfare. — There  is  no  arbitrary  deprivation  of 
such  right,  where  its  exercise  is  not  permitted  because  of 
a  failure  to  comply  with  conditions  imposed  by  the  State 
for  the  protection  of  society.  While  such  laws  are  an 
invasion  of  the  common  law  right  of  the  individual,  they 
are  justified  on  the  ground  of  public  necessity.  Ordinarily 
the  law  cannot  interfere  with  freedom  of  private  contract. 
Why  should  the  citizen  not  be  permitted  to  engage  whomso- 
ever he  pleases  to  administer  to  him  when  he  is  sick?  The 
answer  is,  The  public  must  protect  itself  against  impostors, 
fakers,  charlatans,  empirics,  ignoramuses  and  quacks. 

Right  of  State  to  Control.— "  The  power  of  the  State  to 
provide  for  the  general  welfare  of  its  people  authorizes  it  to 
prescribe  all  such  regulations  as  may  be  and  are  necessary 
to  secure  the  people  against  the  consequences  of  ignorance 
and  incapacity  as  well  as  deception  and  fraud."3  The 
right  of  the  States  to  regulate  the  practice  of  medicine  and 


2  Dent  v.  W.  Va.,  129  U.  S.,  114. 

3  Dent  v.  W.  Va.,    129   U.   S.,    114,    121. 


LICENSE.  65 

surgery  by  fixing  a  reasonable  and  uniform  standard  of 
requirement  is  universally  recognized  by  the  courts  and  has 
passed  out  of  the  realm  of  discussion.  The  courts  uni- 
formly hold  that  States  may  regulate  the  practice  of  med- 
icine, and,  for  that  purpose,  may  establish  a  standard  of 
requirements,  or  may  constitute  a  board  of  examiners  with 
power  to  fix  reasonable  regulations  for  examination  and 
standards  of  proficiency  and  fitness  required  on  the  part 
of  applicants  for  license.  Generally  speaking,  the  legis- 
lative power  of  the  State  may  prescribe  the  conditions  on 
which  any  avocation  or  calling,  affecting  the  public  welfare, 
shall  be  pursued.  It  has  been  uniformly  held  that  reason- 
able license  statutes  are  lawful  exercise  of  the  police  power ; 
are  not  an  unlawful  abridgment  of  the  rights  and  privileges 
of  citizens;  are  not  an  infringement  on  the  right  of  con- 
tract ;  do  not  deny  a  citizen  the  equal  protection  of  the  law ; 
are  not  an  unwarranted  interference  with  vested  rights  and 
are  not  an  unlawful  delegation  of  legislative  or  judicial 
power. 

Soliciting  Patients. — The  State  may  impose  on  the  prac- 
tice of  the  profession  any  conditions  which  are  reasonably 
promotive  of  the  public  welfare  and  those  who  are  in  au- 
thority for  the  time  being  are  clothed  with  the  discretion  of 
determining  whether  a  certain  requirement  meets  the  test. 
Experience  demonstrates  that  in  the  medical  profession  at 
least,  competition  is  not  confined  to  efforts  to  excel  in  skill 
but  frequently  degenerates  into  a  scramble  for  fees.  Free 
competition  sounds  all  right  as  a  theory,  but  the  test  is, 
What  is  the  result  of  its  practice!  Herbert  Spencer's 
philosophy  as  announced  in  Social  Statics,  does  not  give 
sufficient  consideration  to  certain  human  factors  in  the 
problem.  "It  is  best,"  says  he,  "to  let  the  foolish  man 
suffer  the  penalty  of  his  foolishness.  For  the  pain,  he 
must  bear  it  as  he  can;  for  the  experience,  he  must  treasure 


66  MEDICAL   JURISPRUDENCE. 

it  up  and  act  more  rationally  in  the  future. ' ' 4  The  lame- 
ness of  this  moralizing,  when  applied  to  the  medical  pro- 
fession, lies  in  the  fact  that  it  is  frequently  addressed 
to  the  victim  who  has  been  sent  to  his  grave  by  the  empiric. 
Self-reliance  is  highly  essential,  but  it  is  only  foolhardiness 
which  will  not  adapt  means  to  ends.  We  can  swim;  but 
we  don't  swim  the  ocean.  We  use  boats.  By  experience 
we  have  learned  to  recognize,  and  been  taught  to  avoid, 
the  deadly  rattle-snake,  but  we  don't  rely  upon  this  wisdom 
alone  for  protection,  as  we  have  also  learned  that  a  more 
complete  safeguard  is  to  kill  him.  Children  are  under  the 
special  protection  of  the  law  until  they  arrive  at  an  age  of 
sound  discretion  and  the  wisdom  of  the  policy  is  attested  by 
the  approval  of  the  ages.  The  policy  of  the  law  is  to  pro- 
tect the  weak,  decrepit  and  helpless  against  the  evil  designs 
of  the  wicked,  the  crafty,  the  self-serving.  Therefore,  a 
law  prohibiting  licensed  physicians  from  soliciting  patients 
through  paid  agents  has  been  held  to  be  a  valid  exercise  of 
the  police  power.5 

Itinerant  Vendors  of  Medicines. — This  power  of  the 
State  extends  to  the  control  of  the  practice  of  vending 
drugs,  medicines  and  nostrums  by  itinerant  physicians, 
peddlers  and  fakers.6 

Itinerant  Physicians. — Statutes  regulating  the  sale  and 
administration  of  drugs,  nostrums  and  medicines  by  itiner- 
ant physicians  and  vendors  have  been  generally  enacted 
and,  except  on  occasions  of  mere  technical  defects,  have 
been  uniformly  enforced.7  Such  statutes  are  passed  to 
protect  the  health  and  promote  the  welfare  of  society,  and 
to  safeguard  the  people  against  imposition,  chicanery  and 
fraud,  and  bring  the  profession  of  medicine  under  the  con- 

4  Spencer :   Social  Statics,  205. 

5  Thompson  «.  Van  Lear,   77  Ark.,   506. 

6  Kirk  v.   State,    126  Tenn.,    7. 

7  People  v.  Blue  Mountain  Joe,  129  111.,  370;  State  v.  Wheelock  95  la.,  577;  29  A.  0., 
1239,  1242. 


LICENSE.  67 

trol  of  the  law  and  thus  exclude  the  ignorant  and  unscien- 
tific from  the  practice. 

CITY  LICENSE. — A  city  ordinance  which  requires  itinerant 
physicians  to  take  out  a  license  to  sell  their  nostrums  in  the 
city,  and  which  is  not  expressly  limited  to  non-residents,  is 
not  void  on  the  ground  of  unreasonable  discrimination  in 
favor  of  residents.8 

How  Regulated. — BY  STATUTE. — The  legislature  may  fix, 
by  statute,  reasonable  standards  for  determining  the  com- 
petency and  fitness  of  applicants  for  license  to  practice 
medicine  and  surgery.9 

BY  BOARD. — The  legislature  may  provide  for  a  Board  of 
Examiners  and  invest  it  with  power  to  establish  standards 
of  competency  and  fitness.10  Statutes  usually  provide  for 
a  medical  board,  or  board  of  health,  and  leave  the  matter  of 
fixing  a  standard  of  qualification  to  such  board,  and  it  has 
been  held  that  such  provision  is  not  a  delegation  of  either 
legislative  or  judicial  power  to  an  inferior  body. 

Requirements. — The  only  proper  test  is,  7s  the  party  com- 
petent, worthy  and  fit  to  practice  the  profession?  Of  course, 
the  nature  and  extent  of  the  qualifications  required  must  de- 
pend primarily  on  the  state  of  the  science  at  the  time,  but 
they  should  cover  every  field  of  the  profession.  If  the 
standard  is  attainable  by  reasonable  study  and  application, 
within  a  reasonable  period  of  time,  no  valid  objection  can  be 
successfully  urged  even  though  it  is  difficult  to  accomplish ; 
but  it  must  be  reasonable  in  the  light  of  present  advance- 
ment and  the  requirements  of  the  profession.11 

MORALITY. — The  public  welfare  requires  not  only  compe- 
tence in  the  practitioner  but  also  morality,  general  upright- 
ness, respectable  appearance  and  reasonable  obedience  to 

8  Fairfleld  v.  Shallenberger,  135  la.,  615. 

9  Williams  v.  People,  121  111.,  84;   1  A.  C.,  18. 

10  In  re  Thompson,  36  Wash.,  377;  2  A.  0.,  149;  State  v.  Rosenkrans,  30  R.  I.,  374; 
19  A.  0.,  824. 

11  Dent  v.  W.  Va.,  129  U.  S.,  114. 


68  MEDICAL   JUKISPKUDENCE. 

law.  A  grossly  immoral  or  criminal  practitioner  is  more 
dangerous  to  society  than  one  who  is  merely  incompetent 
and,  therefore,  good  moral  character  and  a  record  free 
from  crime  are  universally  required  of  applicants,  and  the 
courts  have  uniformly  held  such  provisions  constitutional. 
The  same  body  which  is  empowered  to  determine  the  com- 
petency of  persons  may  also  pass  upon  the  other  qualifica- 
tions required,  and  reject  those  who  do  not  fulfill  reason- 
able demands  in  this  behalf.  Good  moral  character  is  a 
prerequisite  to  the  practice  of  any  profession.  Such  re- 
quirement has  become  a  settled  policy  of  all  the  states  and 
has  been  held  to  be  indispensable  to  the  exercise  of  the  right 
under  a  license. 

EEQUIREMENTS  MUST  BE  REASONABLE. — Public  welfare  and 
interest  are  safeguarded  when  proper  qualifications  and 
fitness  are  assured.  When  that  object  is  accomplished, 
interference  should  cease.  A  restriction  should  have  some 
reasonable  relation  to  the  purpose  to  be  attained.12  The 
restrictive  and  classifying  provisions  of  such  statutes  are 
uniformly  considered  void  unless  they  are  in  fact  in  good 
faith  reasonably  within  the  necessities  of  the  public  pro- 
tection and  promotive  of  the  public  welfare.13  A  statute 
which  requires  that  an  applicant  for  license  to  practice 
shall  have  a  diploma  from  some  college  in  good  standing, 
and  shall  pass  an  examination  by  a  Board  of  Examiners, 
has  been  held  not  unreasonable,  even  when  there  is  no  col- 
lege in  the  State.14  Also  a  statute  which  permits  the  Board 
of  Examiners  to  determine  whether  an  applicant  for  a  cer- 
tificate has  graduated  from  a  reputable  college  has  been 
held  not  a  delegation  of  judicial  power  to  an  inferior  board, 
and  the  requirement  not  unreasonable  but  enforcible.15 

12  Almond  v.  Nugent,    34  la.,   300. 

1 3  Railway   Company   v.  Jacksonville,    67   111.,    37;    Lakeview  v.   Cemetery   Co.,    70   111., 
192;  Babcock  v.  Buffalo,  56  N.  Y.,  268;  Evarts  v.  Council  Bluffs,  46  la.,  46. 

14  State  v.  Littooy,   52   Wash.,   87 ;    17  A.   C.,   292. 

15  Ex  Porte  Whitely,   144  Cal.,   167. 


LICENSE.  69 

However,  there  must  be  no  unreasonable  classification  with 
extra  burdens  on  some,  not  on  others.16 

Construction  of  License  Statutes. — Though,  in  a  measure, 
in  derogation  of  the  common  law,  such  statutes  and  regu- 
lations should  be  liberally  construed  to  promote  and  accom- 
plish the  object  of  their  creation.17  To  bring  such  statute 
within  constitutional  requirements,  "or"  will  be  construed 
to  mean  ' '  and, ' '  on  the  ground  that  the  legislature  did  not 
intend  to  pass  an  unconstitutional  act,  and  also  because, 
when  a  statute  is  reasonably  susceptible  to  either  of  two 
constructions,  that  meaning  must  be  adopted  which  will 
render  it  constitutional.18 

Practicing  Without  License. — In  a  prosecution  for  prac- 
ticing without  a  license,  it  is  immaterial  that  the  defendant 
is  entitled  to  a  license,  or  that  the  Board  unlawfully  with- 
holds the  same  from  him.19  It  is  no  defense  to  such  pros- 
ecution that  the  complaining  witness  who  was  in  the  em- 
ploy of  the  Board  went  to  the  office  of  the  physician,  so- 
licited treatment  and  paid  him  for  the  services  with  the 
view  of  testifying  against  him.20 

Practicing  Medicine. — Parties  charged  with  practicing 
medicine  without  procuring  a  license  have  frequently  de- 
fended on  the  ground  that  their  conduct  did  not  amount  to 
practicing  medicine  within  the  meaning  of  the  law,  and 
therefore  the  courts  have  frequently  been  called  upon  to 
decide  whether  certain  conduct  amounted  to  practicing 
medicine.21 

CHKISTIAN  SCIENCE. — The  practice  of  Christian  Science 
healing  for  a  fee  was  held  to  come  within  the  provisions  of 

16  State  v.  Gravett,   65  Ohio  St.,  289. 

17  Smith  v.  People,  51  Colo.  270,  36  L.  R.  A.,  158;  State  v.  Yegge,   19  S.  D.,  234;  9 
A.    C.,    202. 

18  Kirk  v.  State,  126  Term.,  137. 

19  State  v.  Mosher,  78  la.,  321. 

20  State  v.  Littooy,  52  Wash.,  87 ;   State  v.  Smith,  152  N.  C.,  798 ;  30  L.  R.  A.,  946, 
954;  25  L.  R.  A.,  341  et  seq.  and  349  et  seq. 

?i  State  v.  Pavis,  J94  Mo.,  485;  4  L.  R.  A.,  1023. 


70  MEDICAL   JURISPRUDENCE. 

a  license  statute  of  Ohio,  the  court  holding  that  the  intent 
of  the  legislature  was  to  bring  within  its  provisions  every 
person  who  for  a  fee  prescribes  or  recommends  a  cure  for 
disease,  even  though  the  cure  is  to  come,  not  through  him- 
self, but,  through  his  intercedence,  from  God.22  It  was 
also  held  that  the  act  was  not  void  because  it  did  not  make 
special  provisions  for  licensing  such  healers  on  examina- 
tion in  accordance  with  their  standards  and  professions. 
Another  court,  however,  has  said  that  "  prayer  for  those 
suffering  from  disease,  or  words  of  encouragement  or  the 
teaching  that  disease  will  disappear  and  physical  perfec- 
tion be  obtained  as  a  result  of  prayer,  or  that  humanity 
will  be  brought  into  harmony  with  God  by  right  thinking 
and  a  fixed  determination  to  look  on  the  bright  side  of  life, 
does  not  constitute  the  practice  of  medicine  in  the  popular 
sense. ' ' 23  Where  the  statute  includes  the  treatment,  heal- 
ing or  prescribing  for  any  mental  or  physical  ailment  with- 
out words  of  limitation,  it  will  include  Science  practitioners, 
faith  healers  and  others  of  that  type  of  ministration.24 
The  policy  of  the  law  is  to  exclude  the  incompetent  and  un- 
worthy from  attempting  to  cure  disease  or  heal  injuries 
in  whatever  school  or  line  he  may  practice,  and  it  is  asking 
too  much  to  assume  that  all  Scientist  healers,  or  would-be 
healers,  are  competent,  and  therefore,  all  should  be  pro- 
hibited from  practicing  as  a  profession  for  a  fee  until  they 
have  devised  a  reasonable  and  practical  means  of  elim- 
inating the  incompetent  from  among  them. 

MISCELLANEOUS  PRACTITIONERS. — One  who  diagnoses  dis- 
ease by  alleged  microscopic  examination  of  the  blood  and 
proposes  to  cure  disease  by  an  application  of  light  comes 
within  the  provisions  of  a  statute  requiring  license  of  any 
person  who  shall  profess  to  treat  or  prescribe  for  any  phys- 

22  State  v.  Marble,   72  O.  St.,  21. 

23  State  v.  Mylod,  20  B.  I.,  637. 
2*  State  v.  Bus-well,  40  Neb.,  158. 


LICENSE.  71 

ical  ailment,  and  he  does  not  come  within  the  provision 
exempting  opticians.25  The  giving  of  electric  treatment 
for  disease  is  practicing  medicine.26  Offering  and  trying 
to  cure  the  opium  habit  by  one  who  styled  himself  a  doctor, 
is  practicing  medicine,  for  which  he  must  procure  a  li- 
cense.27 One  who,  for  a  fee,  professes  to  cure  disease  by 
dieting  his  patients,  regulating  their  exercise  and  using 
spectacles,  must  be  licensed  as  a  physician.28  One  who 
professes  to  treat  disease  and  injuries  by  Christian  Science 
is  required  to  procure  a  license  to  practice  medicine  or 
desist  from  his  practice.29  Where  a  person  calls  himself 
professor  and  pretends  to  be  a  magnetic  healer  and  publicly 
professes  to  cure  disease  and  heal  injuries,  comes  within 
the  law  requiring  license.30  The  practice  of  osteopathy  is 
the  practice  of  medicine.31  A  party  who  publicly  an- 
nounces his  ability  to  cure  cancer  by  a  preparation  pre- 
pared by  himself  from  herbs  and  vegetables,  and  under- 
takes for  reward  to  cure  persons  so  afflicted  is  practicing 
medicine,  though  he  makes  no  pretense  of  being  a  doctor.32 
One  who  claims  to  cure  diseases  and  prescribes  and  fur- 
nishes what  he  calls  tissue  food  must  take  out  a  license.33 
ITINERANT  PATIENT. — A  physician  who  is  regularly  li- 
censed in  the  State  of  his  domicil  may  go  with  his  patient, 
who  is  also  a  resident  of  said  state,  into  any  other  state  in 
search  of  health  or  recreation,  and  there  continue  to  treat 
the  patient  without  being  amenable  to  the  license  laws  of  the 
state  of  temporary  residence,  and  he  may  recover  his  fee 
for  services  in  the  latter  state.  As  long  as  he  confines  him- 

25  O'Neil  v.  State,  115  Tenn.,  427. 

26  Davidson  v.   Bohlman,   37  Mo.  App.,   576. 

27  Benham  v.   State,   116  Ind.,  112. 

28  State  v.  Edmunds,  127  la.,  333. 

29  State  v.  Buswell,  40  Neb.,  158. 

30  Parks  v.  State,   159  Ind.,  211;    State  v.  Heath,   125  la.,   585. 

si  Little  v.  State,  60  Neb.,  749 ;  State  v.  Gravett,  65  O.  St.,  289 ;  Jones  v.  People,  84 
111.  App.,  453;   Bragg  v.  State,   134  Ala.,  165;   3  L.  B.  A.,   762. 

32  State   v.  Huff,   75   Kan.,    585 ;    12    L.   B.   A.,    1094. 

33  State  v.  Breese,  137  la.,   673 ;  24  L.  R.  A.,  103. 


72  MEDICAL    JURISPRUDENCE. 

self  to  his  transient  patient  he  will  not  be  considered  as 
practicing  medicine  in  the  state  of  temporary  residence.33* 

OPTICIAN. — An  itinerant  optician  who  announces  that  he 
does  not  give  medical  or  surgical  treatment,  and  who  tests 
eyes  and  sells  glasses  to  correct  errors  in  refraction  is  not 
a  practitioner  of  medicine,  nor  a  vendor  of  "appliances 

intended  for  the  treatment  of  disease. ' ' 34 

* 

Right  of  Physician  to  Practice  Dentistry. — In  a  State 
which  requires  dentists  to  procure  a  license  before  engaging 
in  the  practice  of  the  profession,  and  fixes  a  penalty  for 
practicing  without  a  license,  a  regularly  licensed  physician 
will  not  be  permitted  to  practice  dentistry.35 

Exemption  of  Resident  Practitioners. — The  statutes  usu- 
ally excuse  from  examination  physicians  who  are  practicing 
in  the  state  at  the  time  the  law  takes  effect.  Such  exemp- 
tion is  legal  and  does  not  render  the  act  void.36 

Board  Cannot  Delegate  Discretion. — The  Board  provided 
by  license  statutes  for  administering  the  same  cannot  dele- 
gate its  right  to  determine  the  qualification  and  fitness  of 
an  applicant  for  leave  to  practice,  to  another  organization 
or  body.  An  attempt  to  do  so  is  treated  as  a  refusal  to 
exercise  the  discretion,  and  courts  will  interfere  to  compel 
action.37 

Revocation. 

Reserved  Right  of  State. — The  power  to  grant  a  license 
for  competency  and  fitness,  or  refuse  a  license  for  incompe- 
tency  or  unworthiness  implies  the  power  to  revoke,  for 
cause,  a  license  which  has  already  been  issued.  The  causes 
which  will  justify  refusing  a  license  will  ordinarily  justify 
revoking  the  same.  The  issuing  of  a  license  for  supposed 


33a  Zeigler  v.  C.  T.  &  S.  Bank,  245  111.,   180. 

34  People  v.   Smith,   208   HI.,   31. 

35  State  v.  Taylor,   106  Minn.,   218;    16  A.  0.,   487. 

36  State  v.  Green,  112  Ind.,  462;  Ex  Parte  Spinney,   10  Nev.,   323. 

37  Board  v.  Cooper,   123   111.,   227. 


LICENSE.  73 

merit  must  necessarily  imply  the  reservation  of  the  right 
to  revoke  the  same  if  it  shall  subsequently  appear  that  it 
was  obtained  by  fraud  or  through  mistake  by  one  not  en- 
titled thereto,  or  in  event  the  licensee  shall  subsequently 
prove  incompetent  or  unworthy.  From  the  very  nature  of 
things,  a  license  can  be  held  only  during  good  behavior. 
The  purpose  of  the  law,  the  protection  of  society,  demands 
this  interpretation. 

Vested  Rights. — A  license  is  not  a  vested  right,  nor  an 
irrevocable  franchise,  but  is  at  all  times  subject  to  the 
police  power  and  the  policy  of  the  State  in  the  protection 
of  its  citizens.  A  person  cannot  acquire  an  absolute  vested 
right  under  a  license  for  any  definite  period  beyond  the 
control  of  the  police  power  of  the  State.  A  license  to  prac- 
tice a  profession  confers  no  vested  right  or  privilege  above 
legislative  control.  A  licensee  takes  the  license  subject  to 
all  the  conditions  and  restrictions  imposed  by  the  law  un- 
der which  the  same  was  issued  or  granted,  including  the 
reservation  by  the  State  of  the  right  to  revoke  for  cause,  on 
proper  notice  and  reasonable  opportunity  to  be  heard  and 
to  amendment  of  the  law.  The  party  accepting  a  license, 
takes  the  same  subject  to  the  right  of  the  State  to  make 
further  restrictions,  requirements  and  regulations  at  any 
time  the  public  welfare  demands,  and  where  such  new  re- 
strictions and  increased  requirements  are  reasonable  and 
fairly  promotive  of  public  health  and  weal,  they  will  be  sus- 
tained even  though,  in  their  enforcement,  they  have  the 
effect  of  prohibiting  some  physicians  from  further  engaging 
in  the  profession  under  a  license  previously  issued.38 
The  State  has  a  right  to  require  physicians  to  furnish  evi- 
dence of  continuing  qualifications  and  fitness.39 

Due  Process  of  Law — The  Law  of  the  Land. — Due  process 


38  Eeetz  v.  Michigan,  188  U.  S.,  505;   127  Mich.,  87. 

39  State  v.  Webster,  150  Ind.,  607;  8  L.  B.  A.,  1272;  Ex  parte  Garland,  4  Wall.,  333. 


74  MEDICAL   JURISPEUDENCE. 

of  law,  or  the  law  of  the  land  means  such  an  exercise  of  the 
powers  of  government  as  the  settled  maxims  of  law  permit 
and  sanction,  under  such  safeguards  as  those  maxims  pre- 
scribe for  the  class  of  cases  to  which  the  one  in  question 
belongs.  They  do  not  necessarily  refer  to  judicial  pro- 
ceedings. Private  rights  and  enjoyment  of  property  may 
be  interfered  with  by  the  legislative  or  executive,  as  well 
as  the  judicial,  department  of  the  government.40 

Revocation  Not  a  Judicial  Function. — The  revocation  of 
a  license  to  practice  a  profession  is  not  necessarily  the  exer- 
cise of  a  judicial  function,  where  all  the  formalities  of 
courts  of  justice  must  be  observed,  and  the  action  of  a 
board  invested  with  such  power,  in  revoking  a  license,  for 
justifiable  cause,  is  not  the  deprivation  of  the  practitioner 
of  property  without  due  process  of  law,  in  violation  of  sec- 
tion 8,  Article  2  of  the  Federal  Constitution.41  Such  act 
is  only  an  exercise  of  administrative  discretion, — an  en- 
forcement of  the  police  power  of  the  State,  by  the  executive 
department.  Investing  an  examining  board  with  power 
to  issue  and  revoke  license  for  cause,  is  not,  generally  speak- 
ing, clothing  it  with  judicial  power,  but  rather  investing  it 
with  administrative  discretion.42 

Grounds  for  Revoking. — A  board  has  the  power  to  re- 
voke certificates  issued  to  individuals  for  the  same  reasons 
it  may  refuse  to  issue  such  certificates.  But  the  right  of 
the  citizen  to  practice  his  profession  is  too  important  to  be 
taken  away  from  him  without  some  reasonable  cause.  The 
revocation  must  be  based  upon  some  act  or  conduct  that 
would,  in  common  judgment,  be  deemed  immoral,  unworthy, 
dishonorable  or  clearly  unprofessional.  Procuring  a  li- 
cense by  one  who  is  grossly  immoral,  without  disclosing  his 
unfitness,  is  a  fraud  upon  the  public  and  will  justify  a 

40  Chapman  v.  State,  34  Minn.,  387. 

41  Wilkins  v.   State,   113  Ind.,   514. 

42  France  v.  State,  57  O.  St.,  1. 


LICENSE.  75 

rescission  of  the  license,  within  a  reasonable  time,  on  proper 
notice  and  hearing.  Thus,  a  license  may  be  revoked  for 
immorality,  even  though  the  only  evidence  offered,  or  speci- 
fications given,  are  of  acts  prior  to  the  time  the  license  was 
issued,  or  even  prior  to  the  passage  of  the  law  under  which 
the  license  was  granted.  The  law  which  permits  such  revo- 
cation is  not  ex  post  facto.  The  real  ground  of  revocation 
is  want  of  good  moral  character  at  the  time  of  complaint 
or  hearing.  Of  necessity,  this  want  can  be  proven  only  by 
past  conduct,  sufficiently  recent  to  leave  an  inference  of 
present  delinquency.  Character  is  built  by  a  course  of  con- 
duct. Acts  are  the  cause;  character  the  effect.  In  such 
case  the  party  is  not  being  tried  for  past  offenses,  but  for 
the  present  deficiency  which  the  prior  conduct  tends  to 
prove.  If,  in  the  meantime,  a  reformation  has  taken  place, 
it  should  be  susceptible  of  proof,  and  such  fact  must  be 
within  the  knowledge,  and  the  means  of  proof,  therefore, 
must  always  be  at  the  command,  of  the  accused.43  But  a 
license  cannot  be  revoked  from  mere  caprice  and  without 
cause,  when  fairly  issued  upon  sufficient  evidence  of  the 
applicant's  fitness  and  qualifications.44 

ILLUSTBATIONS. — A  license  may  be  revoked  for  immoral- 
ity ; 45  for  fraud  in  procuring  the  same,46  such  as  present- 
ing a  fraudulent  diploma,47  or  one  issued  to  another  per- 
son ; 48  for  false  statements  in  advertising,  to  the  effect  that 
the  advertiser  can  cure  all  diseases,  or  statements  which 
are  calculated  to  deceive  and  defraud  the  public ; 49  for  sale 
of  intoxicating  liquors  without  a  license  therefor  and  with- 
out prescription ; 50  for  criminal  abortion ; 51  for  maintain- 

43  Meffett  v.  Packer,  66  Kan.,  710. 

44  People  v.  McCoy,   125  111.,  289. 

45  Meffert  v.  Packer,  66  Kan.,  710. 

46  Curryer  v.  Oliver,   27  Ind.  App.,  424. 

47  Cully  v.  Territory,    19   Okl.,    189. 

48  State  v.  Roy,  22  B.  I.,  532. 

49  State  v.  Examiners,   34  Minn.,   387;   State  v.  McCreary,  95  Ark.,   511. 

50  State  v.   Goodier,   105   Mo.,   551. 

51  Matthews  v.  HedtilK  82  Neb.,  825;  Munk  v.  Frink,  81  Neb.,  631. 


76  MEDICAL   JURISPRUDENCE. 

ing  two  offices  under  different  names,  with  the  intent 
thereby  to  perpetrate  a  fraud  upon  the  public ; 52  for  an 
advertisement  relating  to  venereal  diseases,  in  violation  of 
law ; 53  for  commission  of  a  felony ; 54  for  accepting  money 
from  persons  in  the  last  stages  of  consumption,  under  the 
representation  that  they  were  suffering  from  catarrhal 
bronchitis,  when  he  must  have  known  the  truth ; 55  for  ad- 
vertising to  cure  incurable  diseases,  where  a  statute  pro- 
hibits the  same ; 56  and  for  conviction  of  an  offense  involv- 
ing moral  turpitude. 

The  making  of  statements  and  promises  by  a  physician 
with  reference  to  the  treatment  and  cure  of  the  sick  and 
afflicted,  which  were  calculated  to  deceive  and  defraud  the 
public,  were  held  unprofessional  and  dishonorable,  and 
should  properly  subject  the  offender  to  a  revocation  of  his 
license,  when  proceeded  against  in  a  legal  manner.57 

Proceedings  to  Revoke. — CHARGES. — Written  charges  set- 
ting forth  the  nature  of  the  complaints  need  not  be  filed 
with  nor  prepared  by  the  Board  unless  the  statutes  or  the 
rules  of  the  Board  so  require.  In  the  absence  of  such  re- 
quirement, the  body  charged  with  the  duty  of  supervising 
practitioners  may  act  upon  an  informal  oral  complaint. 
However,  even  in  the  absence  of  statutory  requirement,  it 
is  desirable  to  require  written  charges  signed  by  the  party 
making  them,  specifying  the  nature  of  the  offenses  with 
which  the  licensee  is  charged.  The  complaint  need  not  be 
drafted  with  the  accuracy  of  an  information  or  an  indict- 
ment in  criminal  law;  the  allegations  are  sufficient  if  they 
challenge  the  attention  of  the  Board  and  notify  the  licensee 
of  the  nature  of  the  accusations  made  against  him.58  The 

52  Rose  v.  Backster,    7  Ohio  N.   P.  N.   S.,    132. 

53  Kennedy  v.  State,   145  Mich.,  241. 

54  Spurgeon  v.   Rhodes,   167   Ind.,   1. 

55  In  re  Washington,  23  Ont.  Rep.,  299. 

56  State  v.  McCreary,  95  Ark.,  511. 

57  People  v.  McCoy,   125  HI.,   289. 

58  Meffert  v.  Packer,  66  Kan.,  710. 


LICENSE.  77 

complaint  must  set  forth  facts  which  constitute  an  offense 
and  justify  a  revocation.59 

Where  written  complaint  is  not  necessary,  but  neverthe- 
less one  is  filed,  the  evidence  need  not  be  confined  to  the 
written  charges,  but  the  record  should  show  that  the  re- 
spondent was  given  a  reasonable  opportunity  to  explain  or 
refute  all  the  evidence  adduced  against  him,  and  the  records 
should  show  the  consideration  by  the  Board  of  all  such 
matters  and  its  conclusions  thereon. 

NOTICE. — Notice  to  the  person  whose  rights  are  involved 
is  indispensable  to  the  right  to  proceed  against  him.  Be- 
fore a  license  to  practice  medicine  can  be  revoked  by  a 
board  of  examiners,  the  licentiate  must  be  given  due  notice 
and  a  reasonable  opportunity  to  be  heard.  Nothing  is  pre- 
sumed in  favor  of  the  jurisdiction  of  such  a  body,  and  the 
particular  facts  necessary  to  confer  jurisdiction  must  be 
made  to  appear  from  the  record  of  its  proceedings.  If  the 
records  do  not  show  such  jurisdictional  facts,  the  judgment 
will  be  void.60  Whether  the  right  to  practice  a  profession 
is  property  in  the  technical  sense,  it  is  a  valuable  franchise 
and  one  of  which  a  person  cannot  be  deprived  without  an 
opportunity,  by  timely  notice,  to  refute  the  charges  pre- 
ferred against  him.  Where  a  practitioner  had  a  charge 
made  against  him  of  making  statements  and  promises  cal- 
culated to  deceive  and  defraud  the  public,  of  which  charges 
he  had  no  notice,  and  of  which  he  was  never  found  guilty 
upon  any  evidence  of  their  truth,  an  order  of  the  Board 
revoking  his  certificate  was  unauthorized  and  void,  and  was 
set  aside  by  the  court.61  In  the  absence  of  statutory  re- 
quirement, or  rule  of  the  Board,  any  form  of  notice,  oral 
or  written,  will  be  sufficient,  but  the  advisability  of  written 


59  State  v.   Kellogg,    14  Mont.,   426. 

60  Swearengen  v.   Gulick,    67   111.,    208;    Foster  v.   Glazenor,   27    Ala.,    391;    Harney   v. 
Tyler,  2  Wall.,   342 ;  Freeman  on  Judgments,   Sec.  123. 

01  People  v.  McCoy,   125  111.,   289. 


78  MEDICAL    JURISPRUDENCE. 

notice  personally  served  is  so  manifestly  preferable  as  not 
to  require  recommendation.  The  notice  should  specify  the 
general  nature  of  the  complaint,  the  time  and  place  of  the 
hearing,  and  be  signed  by  the  proper  members  or  officers 
of  the  investigating  body. 

HEARING. — When  hearing  complaints,  such  Board  is  not 
a  judicial  body,  and  it  is  not  required  to  adhere  strictly  to 
rules  of  procedure  in  court  in  the  conduct  of  the  hearing  or 
in  the  introduction  of  evidence. 

JURY  TRIAL. — In  an  action  to  revoke  a  license,  the  de- 
fendant is  not  entitled  to  a  trial  by  jury,  and  it  is  not  nec- 
essary that  the  proceedings  shall  be  conducted  with  that 
degree  of  exactness  required  upon  a  trial  for  a  criminal 
offense,  in  an  ordinary  judicial  tribunal.62 

RECORD. — A  record  should  be  kept  showing  in  detail  the 
complete  proceedings  from  the  complaint  to  the  finding 
and  order.  The  revocation  of  a  certificate  cannot  be  sus- 
tained when  it  does  not  appear  from  the  record  of  the  pro- 
ceedings that  the  Board,  from  evidence  submitted  to  it,  or 
otherwise,  ever  found  the  holder  of  the  certificate  guilty  of 
any  act  or  conduct  that  was  unprofessional  or  dishonor- 
able.63 

Effect  of  Decision  by  Board. — Its  decisions,  made  in  good 
faith,  after  due  notice  and  reasonable  opportunity  to  be 
heard,  are  binding  on  the  courts  unless  clearly  and  mani- 
festly wrong  and  oppressive.  Such  bodies  are  a  depart- 
ment of  the  administrative  affairs  of  government,  not  cor- 
porate bodies,  and  may  not  be  interfered  with  by  the  courts, 
except  for  arbitrary  refusal  to  act,  for  oppressiveness  or 
for  unauthorized,  unjust  or  arbitrary  conduct.64  The 
courts  are  not  concerned  in  the  right  or  wrong  of  such  de- 

B2  Munk  v.  Frink,  81  Neb.,  631. 

63  People  v.  McCoy,  125  111.,  289. 

6*  Iowa  E.  M.  0.  A.  v.  Schrader,  87  la.,  659;  State  v.  Fliescher,  41  Minn.,  69;  U.  S. 
v.  Hitchcock,  190  U.  S.,  324;  Harding  v.  People,  10  Colo.,  109;  State  v.  Examiners,  34 
Minn.,  387. 


LICENSE.  79 

cisions  unless  an  appeal  to  the  courts  is  expressly  provided 
by  statute.  However,  this  is  a  government  of  laws,  not  of 
men,  and  our  courts  must  be  the  final  arbiters  where  any 
oppressive  or  illegal  element  is  involved.65 

Statutes  of  Limitation. — The  object  of  a  revocation  of 
license  is  the  future  protection  of  society,  not  the  punish- 
ment of  the  licensee.  Therefore,  the  usual  statutes  of  limi- 
tations do  not  apply  to  such  proceedings,  and  a  party  may 
have  his  license  revoked  for  an  offense  for  which  he  cannot 
be  prosecuted  criminally,  owing  to  the  statute  having  run 
against  the  offense.66 

Revocation  and  Criminal  Prosecution. — A  license  may  be 
revoked  for  a  criminal  offense  before  the  party  has  been 
prosecuted  for  the  crime,  as  the  criminal  prosecution  and 
the  revocation  of  the  license  are  absolutely  independent 
proceedings.67 


65  Boyd  v.  U.   S.,   116  U.   S.,   616. 

66  State  v.  Stewart,   46  Wash.,  79;   11  L.  R.  A.,   557;  in  re  Lowenthal,   78  Cal.,   427; 
Ex  parte  Tyler,   107  Cal.,   78;   State  v.   Schaeffer,   129  Wis.,   459;   People  v.  Hooper,   218 
111.,  313. 

67  Munk  v.  Frink,  91  Neb.,   631. 


CHAPTER  VIII. 
CONTRACTUAL  RELATIONS. 

General  Observations. — The  relation  of  patient  and  phy- 
sician is  contractual  in  character,  two  consenting  minds 
being  necessary  to  create  the  same.  In  other  words,  it  is 
voluntarily  assumed, — not  imposed  by  law  as  a  matter  of 
duty  and  public  policy.  In  fact  most  relations  in  life  are 
voluntary  in  nature,  and  when  voluntary  a  party  may  avoid 
their  responsibilities  by  refraining  from  entering  into  them, 
but,  generally  speaking,  he  cannot  enjoy  their  benefits  and 
emoluments  without  incurring  the  obligations  which  the 
law,  as  a  matter  of  public  policy,  imposes  thereon.  The 
marriage  relation  is  a  good  illustration  of  the  extent  to 
which  public  policy  ingrafts  responsibilities  on  the  contract 
between  the  parties,  even  irrespective  of  their  intentions 
or  wishes.  The  relation  of  physician  and  patient  creates 
rights  and  obligations  which  the  parties  may  not  have  dis- 
cussed and  of  which  they  may  have  been  ignorant  at  the 
time. 

Contract. — Not  only  is  the  relation  in  question  founded 
on  agreement  of  the  parties,  express  or  implied,  but  also 
all  transactions  between  a  physician  and  his  patient  are 
based  upon  contract  and,  therefore,  the  general  principles 
of  the  law  of  contracts  apply. 

In  its  widest  acceptation,  contract  is  the  basis  of  social 
and  political  organization.  In  this  meaning  of  the  term  all 
obligations  of  the  individual  to  society  or  to  government 
result  from  his  implied  agreement.  Here,  contract  is 
synonymous  with  duty.  The  individual  has  contracted  to 

80 


CONTBACTUAL  RELATIONS.  81 

do  and  to  refrain  from  doing  all  that  which,  in  the  then 
conception  of  right  and  wrong,  it  becomes  his  duty  to  do 
or  not  to  do.  But,  according  to  the  use  of  the  term  in  law, 
contract  has  a  more  definite  meaning.  "  Jurisprudence  is 
concerned  with  such  rights  only  as  are  recognized  by  law 
and  enforced  by  the  power  of  the  State."  A  right  which 
cannot  be  enforced  in  law  is  an  imperfect  obligation. 

DEFINITION. — "A  contract  is  an  agreement  between  two 
or  more  competent  persons,  upon  sufficient  consideration, 
to  do  or  not  to  do  some  lawful  thing. ' ' 1 

KINDS  OF  CONTRACTS. — Contracts  may  be  said  to  be  (1) 
express  or  (2)  implied,  and  the  latter  may  be  again  divided 
into  (a)  those  in  which  the  agreement  is  a  natural  and  rea- 
sonable inference  from  the  facts  and  circumstances  of  the 
transaction,  and  (b)  those  in  which  the  law  imposes  the 
duty  as  a  matter  of  public  policy  irrespective  of  the  real 
intention  of  the  parties.  The  latter  are  sometimes  called 
constructive  contracts.2 

An  express  contract  is  one  in  which  the  parties  have  de- 
clared orally  or  in  writing  the  terms  of  their  agreement. 

An  implied  contract  is  one  in  which  the  terms  of  the 
agreement  are  (a)  an  inference  of  fact  or  law  deduced  from 
the  conduct  of  the  parties  in  relation  to  its  subject  matter, 
or  are  (b)  imposed  by  law  as  a  matter  of  duty. 

CONTRACT  AND  DUTY. — In  the  latter  sense,  contract  is 
conterminous  with  legal  duty.  It  is  a  well  recognized 
maxim,  though  not  of  universal  application,  that  whatso- 
ever a  man  ought  to  do  the  law  supposes  he  has  promised 
to  do.  "Implied  contracts  are  such  as  reason  and  justice 
dictate  and  which,  therefore,  the  law  presumes  that  every 
man  undertakes  to  perform. ' ' 3 

ILLUSTRATIONS. — In  the  first  class  of  implied  contracts 

1  2   Bl.   Com.,   446. 

2  Hertzog  v.  Hertzog,   29   Pa.   St.,   465,   468. 

3  2  Bl.  Com.,  443. 


82  MEDICAL   JURISPRUDENCE. 

above  referred  to,  the  agreement  or  promise  is  signified  by 
some  other  means  or  symbols  than  words;  thus,  where  a 
person  orders  and  accepts  goods  at  a  store  and  says  noth- 
ing further,  there  is  an  implied  promise,  from  the  order 
and  acceptance,  to  pay  for  them.  Such  is  the  usual  course 
of  conduct.  There  is  an  inference  that  the  person  who  re- 
ceives the  benefit  of  labor  expended  or  professional  serv- 
ices rendered,  promises  to  pay  the  reasonable  and  custom- 
ary charges  therefor.  Thus,  a  sick  patient  impliedly  agrees 
to  pay  a  consulting  physician  for  his  services,  even  though, 
as  between  the  physicians,  or  as  between  the  patient  and 
the  attending  physician,  the  attending  physician  agreed  to 
pay  him.4  The  same  inference  applies  in  the  case  of  the 
employment  of  an  assistant  or  consulting  attorney;  in  the 
absence  of  other  understanding,  the  client  who  knowingly 
accepts  the  services  is  liable  therefor.5 

In  the  second  class  of  implied  contracts,  it  will  be  ob- 
served that  the  inference  of  an  agreement  or  promise  is  a 
pure  fiction.  The  duty  is  imposed  by  law,  not  only  (a)  in 
the  absence  of,  but  also  (b)  sometimes  in  direct  conflict 
with,  the  real  intention  of  the  obligor.  The  absence  of  in- 
tention is  illustrated  in  the  case  of  treasure-trove  which 
the  finder  converts  to  his  own  use  in  the  belief  that  the 
owner  is  unknown.  If  the  owner  appears,  and  claims  and 
proves  his  ownership,  the  law  raises  a  promise  on  the  part 
of  the  finder  to  compensate  him  for  the  value  of  the  prop- 
erty converted.  Where  the  responsibility  under  the  law 
is  in  opposition  to  the  real  intention  of  the  obligor  appears 
in  the  case  of  a  thief  taking  and  appropriating  to  his  own 
use  the  property  of  another.  Here  the  law  raises  a  prom- 
ise on  the  part  of  the  thief  to  pay  the  value  of  the  property 
on  demand,  and  in  an  action  by  the  owner  to  recover  for 


4  Shelton  v,  Johnson,  40  la.,  84;   Garry  v.  Stadler,  67  Wis.,  512. 
6  McCrary  v.  Ruddick,   33   la.,   521. 


CONTRACTUAL   RELATIONS.  83 

the  goods  thus  wrongfully  taken,  the  thief  will  not  be  per- 
mitted to  show  that  he  did  not  intend  to  pay  for  them. 

EXPRESS  EXCLUDES  IMPLIED. — A  contract  may  be  partly 
express  and  partly  implied,  partly  oral  and  partly  written ; 
but,  where  there  is  a  complete  express  contract  there  can- 
not be  an  implied  contract  inconsistent  therewith.  An  ex- 
press and  an  implied  contract  cannot  both  exist  in  the  same 
part  of  a  transaction,  or  touching  the  same  right  or  obliga- 
tion. Where  an  express  contract  is  shown,  there  cannot 
be  maintained  an  action  based  upon  an  implied  agreement 
as  to  the  same  matter,  neither  against  a  party  nor  against 
a  third  person.6  An  express  agreement  necessarily  ex- 
cludes an  implied  one.7  What  is  implied  in  an  express 
contract  is  as  much  a  part  of  it  as  what  is  expressed.8 

WRITTEN  CONTRACTS. — A  written  contract  is  one  which, 
in  all  its  terms,  is  reduced  to  some  form  of  written  lan- 
guage.9 All  prior  propositions  are  superseded  by  the  writ- 
ten agreement,  and  all  prior  and  contemporaneous  stipu- 
lations, material  to  the  contract,  are  merged  in  it.10  The 
written  contract  is  presumed  to  contain  all  the  agreement 
and  when  it  appears  to  be  complete  the  burden  of  proof  is 
upon  the  party  who  seeks  to  establish  the  contrary. 

PARTLY  WRITTEN,  PARTLY  ORAL. —  But  where  only  part  of 
an  agreement  has  been  reduced  to  writing,  extrinsic  evi- 
dence is  admissible  to  show  the  complete  contract.11  When 
a  written  contract  is  so  incomplete  as  to  require  resort  to 
extrinsic  evidence  to  make  it  enforcible,  it  may  be  treated 
as  an  oral  agreement.12 

Delivery. — A  written  contract  takes  effect,  if  at  all,  upon 

6  Shaw  v.  Graves,   79  Maine,    166 ;  Ford  v.  McVay,   55  111.,   119. 
^  Bamming  v.  Oaldwell,  43  111.  App.,  175. 

8  Hart  v.  Otis,  41  111.  App.,  432. 

9  Memory  v.  Niepert,    131  111.,   630. 

10  School  Dist.  v.  Stilley,  36  111.  App.,  135;  Covel  v.  Benjamin,  35  111.  App.,  299;  Caa- 
selberry  v.  Warren,  40  111.  App.,  627. 

11  Covel  v.  Benjamin,  35  111.  App.,  299. 

12  Plumb  v.  Campbell,  129  111.,  106;  Wood  v.  Williams,  40  111.  App.,  117. 


84  MEDICAL   JURISPRUDENCE. 

delivery,  unconditional  and  as  a  contract.  Where  there  is 
no  delivery  there  is  no  contract.13  If  delivery  is  condi- 
tional, the  condition  must  be  performed  before  the  contract 
will  become  effective.14 

Other  Classes. — Executed  and  executory  is  also  a  classi- 
fication of  agreements.  In  an  executed  contract  both  par- 
ties did  all  that  they  were  required  to  do  under  the  agree- 
ment, at  the  time  it  was  entered  into.  It  creates  rights 
in  rem;  it  gives  title  to  property  at  the  time  of  its  execu- 
tion. Technically  this  is  not  a  contract  at  all.  When  the 
agreement  is  reached,  all  acts  are  performed  and,  in  the 
absence  of  fraud,  accident  or  mistake,  that  is  the  end  of  it. 
Each  has  received  something  as  an  equivalent  for  what  he 
gave. 

In  an  executory  contract  something  remains  to  be  done 
by  one  or  both  parties  after  the  execution  of  the  agreement. 
It  contemplates  something  in  the  future,  and  creates  rights 
in  personam  and  in  rem. 

Mutuality. — Executory  contracts  must  have  the  quality 
of  mutuality;  if  one  of  the  parties  is  bound  the  other  must 
be  bound  also;  if  one  is  at  liberty  to  refuse  performance  the 
other  cannot  be  compelled  to  discharge  his  promises.15 

Parties. — Two  competent  parties  are  essential  to  the  mak- 
ing of  a  contract.  A  person  cannot  contract  with  himself.16 

Any  person  not  under  legal  disability  is  competent  to 
contract.  Infants  and  persons  of  unsound  mind  do  not 
have  full  legal  capacity  to  become  parties  to  binding  obli- 
gations, and  courts  will  set  aside  contracts  which  are  not 
manifestly  to  their  advantage.  However,  to  justify  the 
setting  aside  of  a  contract  on  the  ground  of  mental  inca- 


13  Bierdeman  v.  O'Connor,  117  111.,  493. 

14  Jordan  v.  Davis,  108  111.,  336. 

15  Weaver  v.  Weaver,   109  111.,  225. 

16  Nelson  v.  Hayner,  66  HI.,  487. 


CONTRACTUAL   RELATIONS.  85 

pacity  of  one  of  the  parties  to  it,  the  mental  debility  must 
be  such  as,  in  law,  renders  the  person  incapable.17 

Contracts  by  Infants. — Infants  may  make  binding  obli- 
gations for  necessaries  actually  furnished  them  by  accept- 
ing the  same,  but  not  for  money  loaned  them,  though  subse- 
quently invested  in  necessaries.  Necessary  medical  or 
surgical  treatment  is  a  legal  necessity,  within  reasonable 
limits,  for  which  a  minor  will  be  held  liable.18 

Persons  Under  Legal  Disability. — The  foregoing  propo- 
sitions relative  to  minors  apply  to  all  persons  under  legal 
disability. 

Consideration. — The  law  of  contract  is  a  natural  con- 
comitant of  the  private  ownership  of  property  and  the  nec- 
essary exchange  thereof  occasioned  by  diversification  of 
industry  and  the  wants  and  desires  of  men.  In  a  business 
sense,  contract  may  be  considered  as  having  its  origin  in 
the  transfer  of  private  property.  Even  a  contract  for  serv- 
ices, while  not  immediately  referring  to  property,  usually 
contemplates,  in  its  ultimate  analysis,  the  production  of 
values  as  the  result  of  the  services.  The  parties  have  in 
view  this  fact  at  the  time  of  the  agreement.  The  effect  of 
labor  expended  in  value  produced,  or  wants  satisfied,  is  the 
basis  of  the  negotiations.  How  much  value  or  satisfaction 
will  the  exertion  of  muscle  or  brain  create,  is  the  question 
upon  which  the  contract  depends. 

EQUIVALENCE. — The  idea  of  equivalence  enters  into  every 
business  transaction.  In  matters  of  business  a  man  does 
not  part  with  his  right  to  an  article  which  is  capable  of 
satisfying  some  want  without  receiving  therefor  the  satis- 
faction of  some  desire  or  some  other  article  equally  and 
similarly  potent.  Therefore,  two  things  of  value,  and  only 


IT  Perry  v.  Pearson,  135  111.,  224,  230. 

18  People  v.  Pierson,  176  N.  Y.,  201,  203;  See  Oilman  v.  Andrus,  28  Vt.,  241;   Strong 
v.  Poote,  42  Conn.,  203,  205. 


86  MEDICAL   JURISPRUDENCE. 

two,  are  essential  to  every  contract,  namely  (a)  the  thing 
given,  and  (b)  the  thing  received.  These  are  called  the 
consideration.  In  the  preliminary  stage  of  a  contract,  the 
minds  of  the  parties  weigh  and  compare  these  two  things. 
When  they  agree  as  to  the  equality  of  their  values,  the  ex- 
change of  the  right  therein  is  made  and  the  contract  is 
complete.  This  comparison  of  values  is  a  matter  entirely 
for  the  parties  to  the  contract,  and  when,  in  the  absence  of 
fraud  or  undue  influence,  they  have  agreed  upon  their 
equivalence,  the  question  will  not  be  investigated  by  legal 
tribunals.  Courts  will  not  revise  the  judgments  of  the  par- 
ties to  a  transaction  in  the  matter  of  the  equality  of  the 
respective  considerations,  except  for  fraud  or  undue  influ- 
ence. The  inference  is  that,  on  entering  into  a  contract, 
every  man  intends  at  least  to  acquire  an  equivalent  for 
what  he  gives.  Where  nothing  is  to  be  received,  the  infer- 
ence is  that  there  has  been  no  agreement.  Courts  will  not 
enforce  performance  of  a  promise  for  which  there  has  been 
no  consideration.  This  was  the  case  in  the  civil  law,  in 
which  such  an  agreement  is  called  a  nudum  pactum.  In 
such  cases  the  obligee  did  not  change  his  position  and  is  in 
no  worse  situation  by  reason  of  the  promise  having  been 
made  and,  therefore,  has  no  standing  in  court  when  he  seeks 
to  enforce  performance  of  a  promised  gratuity. 

PROMISE  FOR  PROMISE. — One  promise  is  sufficient  consid- 
eration to  support  another  promise.19 

BENEFIT  OR  DETRIMENT. — Any  benefit  to  the  promisor  or 
detriment  to  the  promisee  is  sufficient  consideration  for  a 
promise.20  Thus,  medical  services  rendered  by  A  to  B 
or  to  C,  at  the  request  of  B,  are  sufficient  to  support  B's 
promise  to  pay  A  therefor.  The  consideration  must  con- 


19  Bishop  v.  Busse,   69  111.,   403. 

20  Buchanan  v.   International  Bank,    78   111.,   500. 


CONTRACTUAL   RELATIONS.  87 

sist  of  a  present  act  or  of  a  future  act  promised.  The  act 
cannot  be  in  the  past.21 

While  the  acceptance  of  the  services  of  a  physician  raises 
an  implied  promise  to  pay  what  those  services  are  reason- 
ably worth,  the  mere  fact  that  such  services  are  beneficial 
to  the  patient  does  not  justify  such  inference ;  thus,  it  may 
be  of  lasting  benefit  to  the  patient  to  have  had  a  certain 
operation  performed,  but  the  operator  cannot  recover  for 
his  services  in  performing  the  operation  if  it  was  done  over 
the  objection  or  without  the  consent  of  the  patient. 

Effect  of  Signing  Contract. — Where  a  party,  adult,  of 
sound  mind  and  able  to  read  and  write,  and  who  has  had 
full  opportunity  to  read  a  contract,  signs  it  without  read- 
ing, he  is  bound  by  its  terms  and  provisions,  in  the  absence 
of  fraud  or  other  equitable  considerations.22 

Validity  of  Contracts. — As  a  general  proposition,  a  con- 
tract which  is  valid  at  the  place  where  it  is  executed,  is 
valid  any  place  in  the  world.23 

Constitutional  Right  to  Contract. — The  right  to  enter  into 
contracts  is  as  sacred  as  life,  liberty  or  the  pursuit  of  hap- 
piness. The  inviolability  of  the  obligations  growing  out  of 
contract,  equally  sacred  as  the  right  of  contract  itself,  is 
a  matter  of  supreme  moment  to  industrial  prosperity.  The 
enforcement  of  such  obligations  is  a  duty  imposed  upon 
legal  tribunals  wherever  governments  assume  to  protect 
business  affairs.  Impressed  with  the  importance  of  main- 
taining inviolate  the  right  to  demand  fulfillment  of  prom- 
ises according  to  their  terms,  the  framers  of  the  Federal 
Constitution  provided  therein  that  no  State  shall  pass  any 
''law  impairing  the  obligation  of  contract."  This  obliga- 
tion may  not  be  impaired  by  a  State  through  its  Legisla- 

21  Johnson  v.  Johnson,  31  Pa.  St.,  450;  Curry  v.  Shelby,  90  Ala.,  277. 

22  Seymour  v.  Mackay,  126  111.,  350. 

23  Pecks  v.  Mayo,  14  Vt.,  33;  Roundtree  v.  Baker,  52  111.,  241;  9  Cyc.,  672. 


88  MEDICAL    JURISPRUDENCE. 

ture ; 24  nor  by  its  courts ; 25  nor  by  the  people  of  the  State.26 
This  inhibition  applies  to  contracts  to  which  a  State  is  a 
party,  and  to  cases  where  the  contract  is  in  the  form  of  a 
statute,  or  grant.27  Both  executed  and  executory  contracts 
are  included  in  this  constitutional  provision.28 

Guaranty. — If  work  be  done  for  a  person  on  the  guaranty 
of  another  that  the  services  will  be  paid  for  by  the  guaran- 
tor, if  needs  be,  the  guaranty  should  be  in  writing;  but  if 
the  services  be  rendered  upon  an  unconditional  promise  of 
a  third  person  to  pay  for  them,  the  promise  need  not  be  in 
writing,  but  the  credit  should  be  given  to  the  promisor,  and 
not  to  the  party  for  whom  the  services  were  rendered. 
The  test  is,  Was  the  whole  credit  given  to  the  third  person  ? 
If  the  undertaking  of  a  person  who  agrees  to  answer  for 
another  is  collateral  or  conditional,  it  must  be  in  writing, 
but  if  direct  and  original  it  need  not  be.29  Where  the  guar- 
anty is  in  writing,  the  account  may  be  kept  in  the  name  of 
the  patient;  but  if  the  third  person  is  to  be  held  as  an 
original  obligor,  the  account  should  be  entered  in  his  name. 
Doing  the  work  at  his  request  is  sufficient  consideration  for 
his  promise  to  pay  whether  direct  or  collateral,  regardless 
of  his  relation  to  the  beneficiary  of  the  services.  In  other 
words,  the  consideration  for  a  promise  may  be  either  a 
benefit  to  the  promisor  or  a  detriment  to  the  promisee.30 
Courts  will  not  enforce  promises  for  which  there  has  been 
no  consideration.  Such  promises  are  imperfect  obligations 
and  are  called  naked  promises. 

Receipt. — A  receipt  in  writing  is  not  conclusive,  but  is 
open  to  explanation,  correction  or  contradiction  by  oral 
testimony  or  other  evidence.  It  is  regarded  as  evidence  of 

24  People  v.  Canal  Trustees,  14  111.,  420. 

25  Harmon  v.  Auditor,  123  111.,  122. 

26  Railroad  Company  v.  Hoyt,   1  HI.  App.,   374. 

27  Bruce  v.  Schuyler,  4  Gilm.,  221. 

28  Dartmouth  College  v.  Woodward,  4  Wheat.,  518. 

29  Smith  v.  Hyde,  19  Vt.,  54. 

so  Morgan  v.  Park  National  Bank,  44  111.  App.,   582. 


CONTRACTUAL  RELATIONS.  89 

a  high  character  and,  to  overcome  it,  the  evidence  should 
be  clear  and  convincing.31  A  receipt  in  full  of  a  liquidated 
claim  is  not  conclusive  evidence  of  payment  in  full,  and  is 
subject  to  contradiction  and  explanation.  In  the  absence 
of  other  proof  it  establishes  payment  in  full.32  Payment 
in  part  of  an  undisputed  claim,  which  is  due,  is  no  consid- 
eration for  an  agreement  that  the  payment  shall  be  in  full, 
because  the  debtor  has  done  only  what  he  was  legally  bound 
to  do,  and,  after  such  partial  payment,  the  creditor  may 
proceed  to  collect  the  balance,  but  a  partial  payment  before 
due  may  be  a  sufficient  consideration  for  an  agreement  to 
release  the  balance.33 

The  compromise  and  settlement,  for  any  reasonable  con- 
sideration, of  a  doubtful  or  speculative  claim,  is  a  sufficient 
consideration  when  made  with  knowledge  and  without 
fraud,  and  receipt  in  full,  in  connection  with  such  compro- 
mise, is  binding  on  the  party  giving  it.  A  receipt  in  full 
for  an  unliquidated  or  honestly  disputed  claim,  accepted  in 
good  faith  and  obtained  without  fraud,  is  binding  on  the 
party  who  issues  it.  Thus,  where  a  physician  has  no  agree- 
ment as  to  his  charge  for  services,  his  claim  would  be  said 
to  be  unliquidated,  and  if  the  patient,  honestly  and  in  good 
faith  misunderstood  the  terms  and  conditions  or  honestly 
disputed  the  value  of  the  services,  the  acceptance  of  pay- 
ment and  the  giving  of  a  receipt  in  full,  as  a  condition 
thereof,  would  be  binding  on  the  physician.  A  written  in- 
strument which  operates  both  as  a  contract  and  a  receipt, 
may  be  enforced  as  a  contract  and  be  corrected  or  contra- 
dicted as  a  receipt.34 

Release. — A  release  is  a  quittance,  remission  or  discharge 


31  Walrath  v.  Norton,  5  Gilm.,  437;  Cunningham  v.  Baars,  36  Minn.,  350,  353;  Win- 
chester v.  Grosvenor,  44  111.,  425;  Rockford  R.  Co.,  v.  Rose,  72  111.,  183. 

82  Lyons  v.  Williams,   15  111.  App.,  27;  Neal  v.  Handley,   116  111.,  421. 

BSWolford  v.  Powers,  85  Ind.,  294,  304;  Smith  v.  Bartholomew,  1  Mete.  (Mass.)  276; 
Smith  v.  Phillips,  77  Va.,  548;  Shepard  v.  Rhodes,  7  R.  I.,  470. 

3*  Hossack  v.  Moody,  39  111.  App.,  17. 


90  MEDICAL   JURISPRUDENCE. 

of  a  right  of  action.  It  is  a  unilateral  contract.  As  in  the 
case  of  all  other  contracts,  a  release  must  be  supported  by 
a  consideration.  The  agreement  may  be  oral  but  it  is  ad- 
visable to  reduce  the  same  to  writing  and  have  it  executed 
under  seal.  In  fact,  the  term  release  implies  a  writing 
under  seal.35  At  common  law  a  seal  imports  consideration 
and  obviates  the  necessity  of  introducing  any  other  evidence 
of  that  fact.  A  written  release,  like  any  other  written  con- 
tract, cannot  be  contradicted,  varied  or  modified  by  parol 
evidence. 

KELEASE  AND  RECEIPT  COMPARED. — A  receipt  is  not  a  con- 
tract, it  is  only  an  admission  of  payment  and  may  be  con- 
tradicted, modified  or  impeached.36  A  receipt  is  merely 
evidence  of  the  fact  of  payment,  while  a  release  extinguishes 
a  pre-existing  right;  and,  while  a  receipt  in  full  may  be 
explained  or  modified  or  contradicted,  a  release  under  seal 
forever  estops  and  concludes  the  party.37 


35  I.  C.  R.  B.  Co.  v.  Read,  37  111.,  484,  511. 

36  Gillett  v.  Wiley,  126  111.,  310. 

37  Frink  v.  Bolton,   15  111.,  343 ;  Crane  v.  Ailing,   15  N.  J.  L.,  423 ;  Equitable  Security 
Co.  v.  Talbert,  49  La.  Ann.,   1393. 


CHAPTEE  IX. 

EMPLOYMENT  AND  COMPENSATION. 
Employment. 

Accepting  Service. — Knowingly  accepting  the  services  of 
a  physician  is  usually  prima  facie  evidence  of  employment, 
whether  raised  in  an  action  for  malpractice  or  for  a  fee. 

Unconscious  Patient. — Where  a  party  receives  an  injury 
which  results  in  unconsciousness,  and  from  which  he  dies 
without  regaining  consciousness,  and  a  surgeon  is  sum- 
moned by  a  spectator  and  renders  professional  services  in 
a  bona  fide  endeavor  to  save  the  victim's  life,  a  claim  for 
services  against  the  patient's  estate,  by  the  surgeon,  is  sus- 
tained on  the  legal  fiction  of  a  contract  in  order  to  afford  a 
remedy  which  the  justice  of  the  case  requires.1  Such  serv- 
ices are  regarded  as  a  necessity  and  the  law  places  the 
patient  in  the  same  category  as  infants  and  others  incapa- 
ble of  entering  into  contracts.  The  reasons  upon  which  this 
fiction  rests  are  too  broad  and  humane  to  be  overborne  by 
any  deduction  which  a  refined  logic  may  make  from  the 
circumstances  that  in  such  cases  there  can  be  no  meeting 
of  the  minds  of  the  parties.2 

Employment  by  Third  Person. — A  mere  request  by  a 
third  person,  of  a  physician,  to  render  services  to  another, 
does  not  constitute  an  employment  by  such  party  nor  raise 
an  implied  promise  on  the  part  of  the  person  making  the 
request,  to  pay  for  the  services.3 

Where  medical  services  were  rendered  by  the  plaintiff 


1  Cotnam  v.  Wisdom,  83  Ark.,   601. 

2  Sceva  v.  True,  53  N.  H.,   627 ;   Sherman's  estate,  6  Pa.  Co.  Ot.,  225. 
8  Starrett  v.  Miley,  79  111.  App.,  656. 

91 


92  MEDICAL   JURISPRUDENCE. 

to  a  third  person  upon  request  of  the  defendant,  the  liabil- 
ity was  held  to  be  established  by  proof  that  the  services 
were  rendered  at  the  instance  and  request  of  the  defendant 
and  that  when  the  plaintiff  proposed  to  discontinue  his 
visits,  the  defendant  requested  him  to  continue  them  and 
that  when  the  plaintiff  presented  his  bill  to  the  defendant, 
the  latter  did  not  deny  his  liability,  though  he  disputed  its 
amount.4 

Where  a  person  called  at  the  office  of  a  physician  in  a 
hotel  and,  on  being  informed  that  the  physician  was  out, 
wrote  on  a  card,  having  his  name  and  address  printed 
thereon,  the  words  "Call  on  Mrs.  Day  at  No.  769  Broadway" 
and  handed  it  to  the  hotel  clerk  with  the  request  to  give 
it  to  the  physician  and  tell  him  to  go  as  soon  as  possible, 
and  where  it  did  not  appear  that  credit  was  originally  given 
to  the  patient,  and  where  a  jury  found  for  the  physician 
under  all  the  circumstances,  the  court  held  that  such  person 
became  liable  to  pay  for  the  physician's  attendance  and 
services  upon  Mrs.  Day.5  It  must  appear  from  the  evi- 
dence that  the  physician  understood  that  the  party  calling 
him  was  to  be  responsible  and  this  understanding  must 
have  been  either  by  direct  statement  or  reasonably  deduced 
from  all  the  evidence  and  circumstances  in  the  case,  and  it 
must  also  appear  that  the  physician  extended  the  credit  in 
the  first  instance  to  the  third  person.6 

Ordinarily  a  master  is  not  liable  for  the  services  of  a 
physician  summoned  in  his  temporary  absence  by  his  man- 
ager to  attend  an  employe,  who  was  injured  in  an  accident 
in  the  course  of  his  employment.7  Also  a  railroad  or  other 
transportation  company  is  not  liable  for  the  services  of  a 


4  Curry  v.  Shelby,  90  Ala.,  277. 

5  Bradley  v.  Dodge,  45  How.  Pr.,  57 ;  Clark  v.  Watterman,  7  Vt.,   76. 

6  Starrett  v.  Miley,  78  111.  App.,  658;  Morrell  v.  Lawrence,  203  Mo.,  363. 

7  Holmes  v.  McAllister,   123  Mich.,   493;    Sevier  v.  R.  Co.,  92  Ala.,   258;  Clark  v.  B. 
Co.,  48  Kan.,   654;   Qodshaw  v.  Struck,   109  Ky.,   285. 


EMPLOYMENT   AND   COMPENSATION.  93 

physician  called  by  a  by-stander  to  attend  a  passenger  who 
was  injured,  whether  the  accident  was  the  fault  of  the  com- 
pany or  otherwise.  Of  course,  where  a  custom  of  the  com- 
pany of  paying  for  such  services,  can  be  shown,  a  promise 
might  be  implied,  and,  where  the  party  calling  the  phy- 
sician is  an  employe  of  the  company,  the  nature  of  his 
duties  may  be  such  as  to  imply  authority  to  bind  his  em- 
ployer in  that  behalf.8  Even  though  the  master  personally 
summons  the  physician  where  the  patient  is  unable  to  do 
so,  he  will  not  be  liable  for  the  services.  Other  facts  must 
be  shown,  before  he  can  be  held.9 

Compensation. 

History. — At  common  law,  professional  men  could  not 
sue  and  recover  for  services  rendered,  nor  even  contract 
beforehand  for  pay  for  such  services.  This  grew  out  of  a 
supposed  analogy  with  the  legal  profession,  the  law  having 
its  origin  at  a  time  when  the  lawyer  was  an  official  of  the 
court  in  fact.  The  patient  might  pay  the  physician  if  he 
chose  to  do  so,  and  it  was  always  lawful  for  the  latter  to 
accept  such  remuneration,  but  the  question  of  pay  was  en- 
tirely within  the  discretion  of  the  patient.  The  law  on  this 
subject  has  undergone  a  complete  revolution  and,  at  the 
present  time,  professional  services  stand  upon  the  same 
footing,  as  to  compensation,  as  all  other  services. 

Agreement  as  to  Fee. — Where  the  charge  is  agreed  upon, 
such  agreement,  if  reasonable,  will  control,  in  the  absence 
of  fraud  or  undue  influence.10  In  the  absence  of  fraud  or 
duress,  a  physician  may  stipulate  any  price  for  his  serv- 
ices, and  when  once  rendered,  he  can  recover  the  contract 
price  therefor.  This  presumes  that  the  contract  is  made 
before  the  relation  of  physician  and  patient  is  created. 


8  Hanscom  v.  Minn.  St.  B.  Co.,  53  Minn.,  119 ;  B.  Go.  v.  Davis,  126  Ind.,  99. 

8  Norton  v.  Bourke,  130  Ga.  600,  18  L.  R.  A.,  173. 

10  Doyle  v.  Edwards,  15  S.  D.,  648 ;  Burgoon  v.  Johnson,  194  Pa.  St.,  61. 


94  MEDICAL   JURISPRUDENCE. 

Where  such  relation  exists,  the  fiduciary  nature  thereof 
prevents  the  physician  contracting  for  more  than  a  fair 
and  reasonable  price  for  his  services. 

No  Agreement  as  to  Fee. — One  who,  without  previous 
agreement,  knowingly  accepts  services  from  another  is 
bound  in  law  to  render  compensation  to  the  extent  of  the 
reasonable  value  thereof.  The  law  presumes  that  he  agreed 
to  do  so,  and  that  such  understanding  was  in  the  minds  of 
both  parties  at  the  time  the  work  was  done.  It  is  based 
upon  the  broad  principle  that  the  law  will  require  a  party 
to  do  what  he  apparently  promised  to  do,  or  what  he  ought 
to  do,  regardless  of  his  real  undisclosed  intention  in  the 
premises.  In  the  absence  of  previous  agreement,  a  phy- 
sician is  entitled  in  law  to  a  reasonable  compensation  for 
his  services  and  the  medicines  and  materials  furnished  by 
him.  The  basis  of  the  obligation  to  pay  may  be  either  (a) 
a  benefit  to  the  patient,  or  (b)  a  detriment  to  the  prac- 
titioner, or  (c)  the  two  combined. 

BENEFIT  TO  PATIENT. — Both  in  fact  and  in  law  the  origin 
and  foundation  of  the  relation  of  patient  and  physician  is 
a  supposed  benefit  to  be  derived  by  the  patient.  Eliminate 
this  idea  from  the  minds  of  the  people  and  the  profession 
will  cease.  It  is  absurd,  therefore,  to  suppose  that  the  re- 
sult of  the  treatment  should  in  all  cases  be  entirely  ignored 
in  questions  of  the  reasonable  value  of  the  services. 

PROPER  TREATMENT  KEQUIRED. — The  physician  must  be 
prepared  to  show  that  his  treatment  was  proper,  if  that  be 
disputed,  in  order  to  prove  that  he  is  entitled  to  his  reward ; 
otherwise  he  has  not  performed  what  he  undertook  to  do 
and  the  consideration  fails.11 

A  practitioner  is  employed  to  treat  his  patient  properly, 
and  a  departure  therefrom  is  a  change  of  the  employment. 
Where  the  fault  of  the  practitioner  is  an  element  in  the  final 


11  Basten  v.  Butter,   7  East,   479. 


EMPLOYMENT   AND   COMPENSATION.  95 

result  he  can  recover  only  the  value  to  the  patient  of  his 
services.  If,  by  such  test,  they  had  no  value,  he  can  recover 
nothing  and,  if  the  patient  was  damaged  thereby,  the  obli- 
gation may  rest  on  the  practitioner  to  respond  therefor. 
If  the  patient  in  fact  received  no  benefit  from  the  treatment 
sued  for,  and  this  result  was  due  to  the  lack  of  ordinary 
professional  skill  and  care  of  the  practitioner,  or  was  be- 
cause of  his  failure  to  exercise  such  skill  and  care  to  dis- 
cover or  treat  the  case,  there  could  be  no  right  on  his  part 
to  recover  from  the  patient  for  his  services.  Where  the 
practitioner  is  guilty  of  a  breach  of  duty,  failure  to  relieve 
may  be  taken  into  consideration  in  determining  the  amount 
to  which  the  practitioner  is  entitled,  since  the  basis  of  the 
claim  then  becomes  the  benefit  derived  by  the  patient  from 
the  services,  when  the  same  is  susceptible  of  demonstra- 
tion.12 If  the  value  is  affected  by  the  fault  of  the  servant 
in  the  performance  of  his  duty,  a  different  question  arises. 
He  did  not  do  what  he  was  employed  to  do  but,  in  reality, 
departed  therefrom  and  is  held  responsible  for  results. 
Therefore  he  is  entitled  to  compensation  only  as  he  bene- 
fited his  employer. 

DETRIMENT  TO  PHYSICIAN. — The  event  of  the  treatment  so 
generally  lies  with  the  forces  of  nature  that  all  intelligent 
men  know  and  understand  that  the  physician  is  seldom  re- 
sponsible therefor,  hence,  where  the  services  were  properly 
performed,  benefit  to  the  patient,  in  the  absence  of  special 
agreement,  is  not  essential  to  the  right  of  recovery  for  such 
services.13 

Since  a  physician  is  not  an  insurer  of  the  success  of  his 
treatment  he  is  entitled  to  the  reasonable  value  of  his  serv- 
ices, whether  he  succeeds  in  curing  his  patient  or  not,  pro- 
vided he  acts  in  good  faith,  uses  the  skill  and  care  of  an 


12  Ely   v.  Wilbur,    49   N.   J.    L.,    684;    Gallaher   v.   Thompson,    1   Wright    (Ohio)    466; 
Kanna  v.   McMullen,    1   Peake,   83 ;    Hupe  v.   Phelps,   2   Stark,   424. 
isLadd  v.  Witte,  116  Wis.,  35;  Cotnam  v.  Wisdom,  83  Ark.,  601. 


96  MEDICAL   JUKISPBUDENCE. 

ordinarily  skillful  and  careful  physician,  and  exercises  his 
best  judgment.14  It  cannot  always  be  determined  before- 
hand whether  he  can  be  of  any  benefit  to  his  patient;  in 
fact  he  may  respond  promptly  to  a  call  and,  on  his  arrival, 
may  find  his  patient  dead.  Having  attempted  to  discharge 
his  duty  to  his  patient  and  being  prevented  by  no  fault  of 
his  own  he  is  entitled  to  be  reimbursed  for  his  efforts  made 
in  good  faith.  It  is  a  general  law  of  service  that  so  long  as 
the  servant  does  his  duty  faithfully,  promptly  and  properly, 
he  is  not  concerned  in  the  real  value  of  his  efforts  to  his 
master.  The  determination  of  that  question  is  exclusively 
with  the  latter  and,  so  long  as  he  continues  to  accept  the 
services,  he  must  pay  for  them,  regardless  of  their  real 
value  to  him. 

Suppose,  in  the  last  illustration,  that  the  physician  de- 
layed unnecessarily,  and  without  reasonable  cause  or  ex- 
cuse to  respond  to  the  call,  a  different  and  probably  con- 
trolling element  would  be  injected  into  the  problem.  By 
delay  he  breached  the  contract.  He  departed  from  the  im- 
plied agreement.  He  was  not  employed  for  that  purpose. 
If  he  did  his  patient  no  good,  and  if  such  result  was  due 
to  his  own  fault,  then  he  should  not  be  entitled  to  any  com- 
pensation. 

Special  Agreement  as  to  Result. — Where  a  professional 
man  makes  a  special  agreement  to  afford  relief  to  his  pa- 
tient, or  to  accomplish  any  other  specific  result,  he  cannot 
recover  either  for  services  rendered  or  material  supplied, 
unless  he  reasonably  accomplishes  what  he  promises.15  An 
agreement  to  do  work  to  the  satisfaction  of  another,  means 
to  do  such  work  as  the  party  should  be  satisfied  with.  He 
cannot  object  to  it  from  mere  caprice  or  to  avoid  his  obli- 
gation.16 

i4Yunker  v.  Marshall,  65  111.  App.,  667;  Logan  v.  Field,   75  Mo.  App.,  594. 
16  Smith  v.  Hyde,  19  Vt.,  54 ;   Hupe  v.  Phelps,  3   Stark,  480 ;  Mock  v.  Kelley,  3  Ala., 
387. 

16  Keeler  v.  Clifford,  165  111.,  544,  548. 


EMPLOYMENT   AND   COMPENSATION.  97 

Services  During  Life  of  Patient. — An  agreement  to  render 
medical  services  to  a  patient  as  long  as  he  lives,  for  a  stipu- 
lated sum  to  be  paid  by  the  estate  of  the  patient,  has  been 
held  by  some  courts  to  be  against  public  policy  on  the  ground 
(a)  that  it  gives  the  physician  a  distinct  benefit  in  the  death 
of  his  patient,  whereas  his  interest  and  desire  ought  to  be 
to  prolong  the  life  of  the  person  under  his  professional 
care,  and  (b)  that  it  is  a  wagering  contract.1611  However, 
some  courts  have  not  adopted  this  reasoning,  and  it  is  man- 
ifestly advisable  for  a  physician  never  to  put  himself  in  a 
position  where  he  will  apparently  profit  by  the  death  of  his 
patient.165  Where  the  consideration  of  such  a  contract  is 
dependent  upon  the  number  of  visits  or  the  time  consumed 
by  the  physician,  or  the  time  the  patient  survives,  the  reason 
for  the  holding  does  not  apply  and  the  consideration  can  be 
recovered  from  the  estate  of  the  patient,  provided  it  is  not 
fraudulent.  All  agreements  must  be  interpreted  in  the  light 
of  public  policy,  which  forbids  that  contracts  shall  receive 
such  interpretation  as  will  encourage  crime  or  make  their 
enforcement  a  reward  therefor.  Wager  policies  of  insur- 
ance were  held  void  at  common  law  because  of  the  obvious 
temptation  presented  by  them  to  the  commission  of  crime. 
A  physician  should  avoid  a  contract  whose  enforcement 
might  appear  to  be  an  award  for  crime. 

Frequency  of  Visits. — The  physician  must  determine  the 
frequency  of  calls  required  by  the  condition  of  his  patient, 
and  if  the  patient  accepts  such  services  he  cannot  escape 
liability  for  services  actually  rendered,  on  the  ground  that 
calls  were  more  frequent  than  necessary,  unless  he  can 
show  fraud  or  other  improper  motive  on  the  part  of  the 
practitioner.17  Where  the  services  are  admitted,  but  an 
alleged  special  contract  as  to  fee  denied  by  the  patient,  the 


I6a  Dent  v.  Bennett,  4  M.  &  C.,  269. 

leb  Zeigler  v.  Illinois  Trust  &   Savings  Bank,   245  111.,   180. 

17  Ebner  v.  McKay,   166  111.,  297 ;  Todd  v.  Myers,   40   Cal.,   355. 


98  MEDICAL   JURISPRUDENCE. 

»» 

physician  can  recover  at  least  what  his  services  were  rea- 
sonably worth.18 

Value  of  Services  is  a  Question  of  Fact. — Where  he  has 
no  previous  understanding  with  the  patient,  the  amount  to 
which  the  practitioner  is  entitled,  is  a  question  of  fact  for 
the  jury,  and  is  said  to  be  what  the  services  were  reason- 
ably worth,  under  the  circumstances.  In  determining  the 
value  of  the  services  the  jury  should  take  into  consideration 
the  time  consumed,  the  delicacy  and  difficulty  of  the  oper- 
ation, the  usual  and  customary  fees  for  the  same  or  similar 
services  in  the  locality,  and  the  success  or  failure  of  the 
efforts,  where  improper  treatment  is  shown.19 

What  May  Be  Shown. — The  practitioner  may  show  the 
number  of  his  visits  or  treatments,  the  time  consumed,  the 
distance  traveled,  the  medicines  and  materials  furnished. 
The  implied  agreement  is  to  pay  what  the  services  are  rea- 
sonably worth  in  the  market,  as  it  were,  and  all  matters 
bearing  upon  that  fact  are  admissible  in  evidence  by  either 
party.20 

PREVIOUS  CHARGES. — Charges  for  similar  services  previ- 
ously rendered  to  the  same  patient  are  regarded  as  ad- 
missible, as  presumably  being  in  the  minds  of  the  parties 
at  the  time  the  services  in  question  were  rendered,  and  espe- 
cially when  offered  on  behalf  of  the  patient.21 

PROFESSIONAL  STANDING. — A  practitioner  may  show  his 
high  professional  standing  as  affecting  reasonable  value  of 
the  services  he  performed.22 

COMMUNICATION  OF  INFECTIOUS  DISEASES. — In  reduction  or 
defeat  of  a  fee  the  patient  may  show  that  the  physician 
communicated  to  him,  or  his  family,  the  smallpox  while 


18  Henderson   v.   Hall,    87   Ark.,    1. 

19  Adams   v.    Stevens,    26    Wend.,    451;    Smith   v.   Watson,    14    Vt.,    332;    Wheaton    r. 
Johnson,  55  111.  App.,  53. 

20  Starrett  v.  Miley,  79  111.  App.,   658. 

21  Sidener  v.  Fetter,  19  Ind.  App.,  310. 

22  Lange  v.  Kearney,  51  Hun,  640;  127  N.  T.,  676;  Heintz  v.  Cooper,  47  Pac.,  360; 
Morrell  v.  Lawrence,  203  Mo.,  363. 


EMPLOYMENT   AND   COMPENSATION.  99 

on  the  professional  visits  for  which  he  is  seeking  to  re- 
cover.23 

BILL  DIFFERING  FROM  PRESENT  CLAIM. — The  fact  that  a 
practitioner  in  an  action  to  recover  the  value  of  profes- 
sional services,  presented  a  bill  for  an  amount  less  than  he 
is  suing  for,  is  competent  evidence  on  the  question  of  the 
value  of  his  services,  as  it  is  in  the  nature  of  an  admission 
that  the  amount  thereof  is  the  fair  and  reasonable  value 
of  the  same.  Some  courts  hold  that  his  right  of  recovery 
is  limited  to  that  sum,  but  others  hold  that,  while  his  own 
estimate  of  the  value  of  his  services  is  evidence  against  him 
of  a  high  character,  it  is  by  no  means  conclusive,  and  that 
he  still  has  the  right  to  show  that  his  services  were  in  fact 
worth  more,  and  that  the  bill  was  rendered  for  a  less  amount 
by  mistake,  or  for  some  other  satisfactory  reason.24 

What  May  Not  Be  Shown. — CHARGE  TO  OTHER  PA- 
TIENTS.— The  reasonableness  of  a  charge  is  not  shown  by 
testimony  of  what  the  practitioner  charged  another  patient 
in  a  similar  case.25 

PROFESSIONAL  INCOME  OF  THE  PHYSICIAN. — The  profes- 
sional income  of  the  physician  can  have  no  bearing  on  the 
value  of  his  services,  regardless  of  the  issues.26 

PROBABLE  CHARGE  BY  OTHER  PHYSICIANS. — The  patient  will 
not  be  permitted  to  show  for  what  he  could  have  procured 
other  practitioners  to  render  the  services  in  question.27 

BAD  CHARACTER  OF  PHYSICIAN. — Neither  can  he  show,  in 
defense,  the  practitioner's  bad  character  or  bad  reputation 
generally.28 

PROFESSIONAL  CHARACTER  OF  PHYSICIAN. — In  such  an 
action  the  professional  character  of  the  practitioner  is  not 


23  Piper  v.  Manifee,   12  B.  Mon.,    (Ky.)    465. 

24  Heath  v.  Kyles,  1  N.  Y.,  <Supp.,  770;  Williams  v.  Glenney,   16  N.  Y.,  389. 

25  Collins  •».  Fowler,  4  Atl.,  647. 

26  Marion  County  v.  Chambers,   75  Ind.,  409 ;  Thomas  v.  Caulkett,  57  Mich.,   392. 

27  Marion  Co.  v.  Chambers,   75  Ind.,  409. 

28  Jeffries  v.  Harris,  10  N.  C.,  105. 


100  MEDICAL   JURISPRUDENCE. 

involved,  and  evidence  on  that  subject  is  immaterial  and 
cannot  be  introduced.29 

FINANCIAL  CIRCUMSTANCES  OF  PATIENT  OB  PHYSICIAN. — 
The  pecuniary  circumstances  of  the  patient  or  practitioner 
are  not  an  element  in  determining  the  value  of  the  services, 
as  the  value  whether  considered  as  a  benefit  to  the  one,  or  a 
detriment  to  the  other,  cannot  be  affected  by  the  ability  of 
the  obligor  to  pay,  nor  by  the  necessities  of  the  obligee.30 

The  reason  for  holding  (as  some  courts  hold)  that  the 
financial  standing  of  the  patient  may  be  shown  is  based 
upon  the  fact  that  there  was  evidence  in  the  case  showing 
that  there  was  at  the  time  and  place  of  service  a  general 
custom,  known  to  the  public,  among  physicians  and  sur- 
geons to  graduate  their  fees  according  to  the  financial 
standing  of  their  patients.  But  in  any  event  the  charges 
must  be  reasonable,  whether  considered  from  the  viewpoint 
of  benefit  to  the  patient  or  detriment  to  the  physician.31 

License  Presumed. — In  an  action  for  fee,  in  the  absence 
of  any  evidence,  it  will  be  presumed  that  the  practitioner 
had  a  license  in  a  State  where  a  penalty  attaches  for  prac- 
ticing without  a  license.32 

Unlicensed  Practitioners. — An  unlicensed  practitioner 
cannot  recover  for  his  services  in  a  State  where  the  statutes 
in  force  at  the  time  the  services  were  rendered  require  a 
license,  and  especially  if  the  statutes  bar  recovery  or  fix  a 
penalty  for  practicing  without  a  license.33 

Money  paid  to  an  unlicensed  physician  for  services  can- 


29  Jeffries  v.  Harris,  3  Hawks,  105. 

30  Wheaton  v.  Johnson,   55   111.   App.,   53;   Cotnam  v.  Wisdom,   83   Ark.,    601;    Hess  v. 
Lowrey,    122   Ind.,   225;    Robinson   v.   Campbell,   47    la.,    625;    Morrell  v.   Lawrence,   203 
Mo.,  363;  Marrisett  v.  Wood,   123  Ala.,   384;   Apparently  contra,   Succession  of  Haly,  50 
La.  Ann.,  840;  Lange  v.  Kearney,  127  N.  Y.,  676. 

31  Morrell  v.  Lawrence,   203  Mo.,   363;    11  A.  C.,   655. 

32  Good  v.  Lascher,  99  111.  App.,  653 ;  Williams  v.  People,  20  111.  App.,  92. 

33  Patrick  v.  Ferryman,   52  111.  App.,  514;  Chicago  v.  Honey,   10  111.  App.,  535;  War- 
ren v.   Saxby,    12  Vt.,    146;    Oscanyan   v.  Winchester   Co.,   103   U.   S.,   261;    Harrison  v. 
Jones,  80  Ala.,  412;   Orr  v.  Meek,   111  Ind.,  40. 


EMPLOYMENT   AND    COMPENSATION.  101 

not  be  recovered  by  suit  at  law,  and  it  has  been  held  that 
the  amount  of  a  note,  given  under  such  circumstances,  may 
be  recovered  by  a  bona  fide  holder  for  value,  notwithstand- 
ing the  provisions  of  a  statute  prohibiting  the  practice  of 
medicine  without  a  license  and  fixing  a  penalty  for  its  vio- 
lation.34 

Nature  of  Remedies  Must  be  Disclosed  if  Sought. — In  an 
action  for  his  fee,  wherein  the  patient  defends  on  the  ground 
that  services  were  useless  by  reason  of  the  fault  of  the 
physician  and  the  worthlessness  of  the  medicines,  the  phy- 
sician may  be  required  to  disclose  the  nature  of  remedies 
used  by  him,  even  though  he  claims  a  secret  formula,  and 
the  patient  may  show  that  such  remedies  have  no  efficacy 
towards  the  result  sought  to  be  attained,  or  that  they  are, 
in  fact,  injurious  when  so  used.35 

What  Physician  Must  Prove. — A  physician  must  estab- 
lish the  contract  of  employment,  that  he  rendered  the  serv- 
ices in  question  and,  where  there  was  no  agreement  as  to 
fee,  that  they  were  of  the  value  claimed.36 

How  PROVEN. — The  usual  and  customary  fee  for  like  serv- 
ices, and  the  reasonableness  of  the  charges  made,  must  be 
shown  by  the  testimony  of  other  practitioners.37  In  such 
cases  the  testimony  of  the  witness  is  ordinary  in  so  far  as 
it  goes  to  the  usual  and  customary  fee,38  and  opinion  evi- 
dence, in  so  far  as  it  assumes  to  state  what  is  a  reasonable 
fee,  or  what  is  the  reasonable  value  of  the  services.39 

EFFECT  OF  OPINIONS. — These  opinions  as  to  reasonable- 
ness of  a  fee  and  value  of  services,  while  not  binding  on 
the  court  and  jury  must  not  be  disregarded,  and  a  value 


84  Citizens   State   Bank  v.   Nore,    67   Neb.,    69. 

35  Jones  v.  King,   81   Ala.,   285. 

36  Styles  v.  Tyler,  64  Conn.,  432;  Robinson  v.  Campbell,  47  la.,  625. 

37  Chicago  v.  Wood,  24  111.  App.,  40 ;  Wood  v.  Ohio  R.  Co.,  53  S.  0.,  10 ;  MacEvitt  v. 
Maass,  72  N.  Y,  Supp.,  158. 

38  Walker  v.   Cook,    33   111.   App.,   561-3. 

39  Marion  Co.  v.  Chambers,  75  Ind.,  409 ;  MacEvitt  v.  Maass,  72  N.  Y.  Supp.,  158. 


102  MEDICAL    JURISPRUDENCE. 

fixed  by  them  upon  their  judgment,  based  upon  their  own 
observation  and  experience.40 

Husband  and  Wife;  Parent  and  Child;  Guardian  and 
Ward. — NECESSARIES. — A  husband  is  liable  for  necessaries 
furnished  his  wife.  This  liability  attaches  even  though 
they  are  supplied  her  over  his  objection,  when  he  fails  or 
refuses  to  provide  the  same.  Under  the  law  a  minor  is 
liable  for  necessaries  furnished  him  to  the  extent  of  their 
reasonable  value  at  the  time.  A  special  contract  with  the 
minor  relative  to  the  consideration  is  disregarded.  The 
estate  of  an  insane  person  is  liable  to  the  party  who  sup- 
plies him  with  necessaries. 

Necessaries  Explained. — The  question  of  what  are  neces- 
saries has  often  been  adjudicated  by  the  courts.  Like  most 
cases  coming  before  the  courts,  the  answer  is  not  always 
self-evident.  A  necessity  to  one  might  be  a  luxury  to  an- 
other, while  a  luxury  today  may  be  a  necessity  tomorrow. 
With  reference  to  husband  and  wife  necessaries  embrace 
the  usual  provisions  for  maintenance  of  the  wife's  health 
and  comfort  appropriate  to  their  mode  of  life,  in  view  of 
their  social  standing  and  station,  and  his  financial  ability.41 

MEDICAL  SERVICES  ARE  NECESSARIES. — As  a  general  propo- 
sition, the  estate  of  any  person  under  legal  disability,  for 
any  cause,  will  be  liable  for  medical  and  surgical  attention 
and  services  reasonably  necessary  for  the  health,  comfort, 
convenience  or  appearance  of  the  patient,  and  the  measure 
of  the  liability  is  the  fair,  reasonable  value  of  the  services 
and  materials  at  the  time  and  place.42 

HUSBAND  SELECTS  PHYSICIAN. — Ordinarily  the  husband 
has  the  right  to  select  the  physician  who  performs  work 
for  the  wife,  and  it  is  the  wife's  duty  to  go  where  the  hus- 


40  In  re  Smith,   41  N.  Y.  Supp.,   1093;  Ladd  v.  Witte,   116  Wis.,   35;  Wood  v.  Baker, 
49  Mich.,  295;   Spalding  v.  Bliss,  83  Mich.,   311. 

41  McMahon  v     Sankey,   133   111.,   636;   Clark  v.  Tenneson,    146  Wis.,   65. 

42  McCreery  &  Co.,  v.  Martin,   84  N.  J.  L.  626,  47  L.  R.  A.,   279. 


EMPLOYMENT   AND    COMPENSATION.  103 

band  determines.  Therefore,  if  a  husband  specifically  ob- 
jects to  a  certain  practitioner  and  provides  for  his  wife  a 
reasonably  competent  person  to  do  the  work  for  her,  the 
physician  objected  to  cannot,  with  knowledge  thereof,  ren- 
der the  services  and  hold  the  husband  liable  therefor.  In 
such  case  he  could  look  alone  to  the  wife,  and  should  make 
a  contract  of  special  agreement  with  her  to  that  effect. 
The  same  rule  applies  to  guardian  and  ward  and  similar 
relations. 

FAMILY  EXPENSE. — Medical  treatment  for  husband  or 
wife,  or  any  minor  member  of  the  family,  are  reasonably 
within  the  intent  of  those  statutes  which  make  both  hus- 
Band  and  wife  liable  for  family  expenses. 

Parent  and  Child. — At  common  law  the  liability  of  a 
father  for  the  support,  maintenance  and  education  of  his 
minor  child,  while  recognized,  was  not  well  defined  and 
amounted  to  little  more  than  an  imperfect  unenforcible 
obligation.  The  duty  was  always  conceded,  but  the  man- 
ner of  its  discharge  was  exclusively  within  the  discretion 
of  the  parent.  The  party  who  voluntarily  supplied  the 
wants  of  a  minor  had  no  legal  claims  against  the  parent, 
and  all  that  he  did  in  this  respect  was  at  his  own  risk, 
unless  he  had  the  express  promise  of  the  father  to  re- 
munerate him,  or  the  circumstances  were  such  that  a  prom- 
ise of  that  character  would  reasonably  be  implied.  In  the 
absence  of  special  legislation,  this  obligation  remains  the 
same  as  at  common  law,  and  the  general  rule  prevails  that 
where  a  person  furnishes  necessaries  to  a  minor  without 
authority  from  the  parent,  he  does  so  at  his  peril  and,  in 
order  to  recover  from  the  parent,  he  must  show  by  a  pre- 
ponderance of  the  evidence,  either  an  express  authority  or 
circumstances  from  which  such  authority  may  be  implied. 
The  parent  is  to  be  the  judge  of  the  wants  of  his  child  and 
of  his  ability  to  supply  them,  and  the  extent  to  which  he 


104  MEDICAL    JURISPRUDENCE. 

shall  respond  to  this  obligation,  and,  when  no  express  au- 
thority has  been  given  to  the  child  to  bind  the  parent,  it 
devolves  upon  the  party  supplying  such  necessities  to  show 
the  neglect  or  refusal  of  the  parent  to  provide  the  same. 

CHILD  SPECIAL  AGENT  OF  PARENT. — If  the  child  has  au- 
thority to  bind  the  parent  it  is  usually  in  the  nature  of  a 
special  agency,  and  the  party  dealing  with  the  minor  is 
bound  to  know  the  extent  of  that  authority.43 

LIABILITY  OP  MOTHER. — In  States  where  married  women 
have  complete  control  of  their  separate  estate,  a  mother 
may  bind  herself  to  pay  for  medical  attention  and  services 
rendered  to  her  minor  children,  notwithstanding  the  father 
is  living  and  able  to  pay. 

KATIFICATION. — Where,  without  the  knowledge  of  the  par- 
ent, a  physician  prescribes  for  a  minor  by  giving  him  a  pre- 
scription or  medicine,  and  the  parent,  with  knowledge  of 
the  facts,  or  of  such  facts  as  to  put  him  on  inquiry,  permits 
the  prescription  to  be  compounded  and  the  medicine  to  be 
taken,  he  is  considered  in  law  as  having  ratified  the  act  of 
the  child  in  engaging  the  physician  and  will  be  held  liable 
for  the  reasonable  value  of  the  services. 

Malpractice. — The  evidence  that  will  sustain  an  action 
against  a  physician  for  malpractice  will  be  sufficient  to  de- 
feat his  recovery  in  an  action  for  compensation  in  such 
case.  In  fact  less  negligence  is  necessary  to  defeat  a  right 
to  compensation  than  is  requisite  to  sustain  an  action  of 
malpractice  for  the  injury.44  If  the  services  of  the  phy- 
sician were  of  no  value,  and  if  the  remedies  used  in  the 
treatment  of  the  patient  were  worthless  and  possessed  no 
efficacy  in  producing  a  cure,  and  these  facts  were  known  to 
the  practitioner  or  ought  to  have  been  known  to  him,  at  the 


43  Dumser  v.  Underwood,    68   111.   App.,   121. 

44  Mixon  v.  Phelps,  29  Vt.,  198 ;  Loan  etc.,  v.  Friedley,  133  Ind.,  143 ;  Hill  v.  Feather- 
stoneaugh,   8  Bing.,    (Eng.)    572. 


EMPLOYMENT    AND    COMPENSATION.  105 

time  of  the  treatment,  no  recovery  can  be  had  for  the  serv- 
ices.45 

MALPRACTICE  AS  A  DEFENSE  TO  AN  ACTION  FOE  SERVICES. — 
Malpractice  by  a  physician  resulting  in  injury  to  his  patient 
may  be  pleaded  by  the  patient  as  a  defense  to  an  action  by 
the  physician  for  the  value  of  his  services  or  for  an  agreed 
fee,  or  to  recoup  his  damages.46 

EFFECT  OF  JUDGMENT  FOR  FEES. — The  courts  are  not 
agreed  as  to  the  effect  of  a  judgment  for  the  services  in 
barring  a  subsequent  action  for  malpractice,  in  reference 
to  the  same  services.  Some  courts  distinguish  between 
cases  where  the  suit  for  the  fee  is  defended  and  cases  where 
the  judgment  is  by  default.47 

Consultant. — In  the  absence  of  an  agreement  to  the  con- 
trary, a  patient  is  liable  to  a  consulting  physician  for  the 
reasonable  value  of  his  services,  even  though  as  between  the 
patient  and  attending  physician,  the  latter  agreed  to  assume 
the  bills,48  or  as  between  the  physicians,  the  one  in  attend- 
ance on  the  case  guaranteed  the  consultant  his  usual  fees.49 
Where  the  patient  is  unconscious  or  insane  and  knows 
nothing  of  the  conference  or  consultation,  and  never  regains 
consciousness  or  sanity,  his  estate  will  be  liable  for  the 
services  of  those  who  are  called  into  the  conference  by  the 
attending  physician,  presuming  all  acted  in  good  faith. 

Witness  Fees. — A  witness  subpoanaed  to  appear  and  tes- 
tify in  a  civil  case  is  entitled  to  compensation,  to  be  de- 
termined by  the  number  of  day's  attendance  and  the  dis- 
tance necessarily  traveled  in  going  to  and  returning  from 
court.  The  law  does  not  recognize  difference  in  the  earn- 


45  Logan  v.  Field,   75  Mo.  App.,  594,   603. 

46  McLure  v.  Hart,  19  Ark.,  119;  Howell  v.  Goodrich,  69  111.,  556;  Hyles  v.  Tyler,  64 
Conn.,  432;  McKleroy  v.  Sewell,   73  Ga.,  657;  Holmes  v.  McKennan,   120  111.  App.,  320. 

47  Jordahl  v.  Berry,  72  Minn.  119;  45  L.  R.  A.,    (O.  S.)   541 — note|  Barton  v.  South- 
wick,   258   111.,   515. 

48  Shelton  v.  Johnson,  40  la.,  84. 

49  Garry  v.  Stadler,  67  Wis.,  512. 


106  MEDICAL   JURISPRUDENCE. 

ing  capacity  of  witnesses.  The  professional  or  business 
man  is  entitled  to  no  more  than  the  most  unskillful  laborer 
out  of  employment. 

Expert  Witness  Fees. — ''There  is  a  distinction  between 
the  case  of  a  man  who  sees  or  hears  a  fact  and  is  called  to 
prove  it  in  a  court  of  justice  and  the  case  of  a  man  who  is 
selected  by  a  party  to  give  his  opinion  on  a  matter  with 
which  he  is  particularly  conversant  from  the  nature  of  his 
study,  experience  or  employment  in  life.  The  former  is 
bound,  as  a  matter  of  public  duty,  to  testify  to  a  fact  which 
happens  to  have  fallen  within  his  knowledge.  Without 
such  testimony  the  course  of  justice  must  be  stopped.  The 
latter,  however,  is  under  no  such  obligation.  There  is  no 
such  necessity  for  his  evidence  and  the  party  who  selects 
him  must  pay  him."  50  However,  in  most  States  the  courts 
hold  squarely  that  an  expert  who  knows  nothing  whatever 
of  the  facts  in  a  case  may  be  subpo3naed  and  required  to 
give  his  opinion  on  a  hypothetical  question  without  any 
compensation  other  than  the  usual  witness  fee,  and  he  can- 
not refuse  to  testify  when  interrogated  as  an  expert  only, 
upon  the  ground  that  no  compensation  greater  than  that 
allowed  ordinary  witnesses  has  been  paid  or  promised  to 
him.51  "It  is  to  be  regretted  that  a  member  of  a  profes- 
sion so  distinguished  for  liberal  culture  and  high  sense  of 
honor  and  duty,  should  refuse  to  testify  in  a  case  pending 
before  the  courts  of  his  country,  involving  the  life  or 
liberty  of  a  fellow  being  and  the  rightful  administration  of 
the  laws  of  a  common  country. ' ' 52  The  court  has  a  right 
to  compel  a  physician  to  give  expert  testimony  in  answer 
to  a  hypothetical  question  calling  for  his  opinion  in  suits 
between  individuals,  and  is  not  confined  to  criminal  prose- 


so  Maule,  J.,  in  Webb  v.  Page,  1  C.  &  K.,  23. 

51  Philler  v.  Waukesha  Co.,  139  Wis.,  211;  Dixon  v.  People,  168  111.,  179,  186, 

52  Summers  v.  City,  5  Tex.  App.,  365. 


EMPLOYMENT   AND    COMPENSATION.  107 

cutions,  since  in  either  case  the  object  is  to  promote  public 
justice  and  insure  the  peace  and  good  order  of  society. 
Refusal  of  a  physician,  who  has  been  regularly  subpanaed 
and  placed  upon  the  witness  stand  to  answer  a  hypothetical 
question  calling  for  his  opinion,  for  the  reason  that  special 
compensation  has  not  been  paid  or  assured  to  him,  justifies 
the  trial  court  in  fining  him  for  contempt.53  By  a  divided 
court  a  different  conclusion  was  reached  in  Indiana.54 

SPECIAL  PREPARATION. — Courts  will  not  require  a  phy- 
sician to  make  a  special  preparation  in  order  to  qualify 
himself  as  a  witness  in  a  case ;  hence,  he  cannot  be  punished 
for  a  contempt  for  refusing  to  make  a  post-mortem  exami- 
nation, unless  paid  therefor,  nor  can  he  be  required  to  pre- 
pare himself  in  advance  for  testifying  in  court  by  making 
an  examination  or  performing  an  operation  or  resorting 
to  a  certain  amount  of  study,  without  being  paid  therefor.55 

WHEN  NOT  SUBPOENAED. — If  no  subpoana  is  served  upon 
an  expert  and  he  attends  as  a  witness  under  a  specific 
agreement  for  special  compensation  made  with  the  party 
calling  him  and  not  in  pursuance  of  the  process  of  the 
court,  he  may  be  enabled  to  enforce  such  an  agreement  in 
court  and  compel  payment  for  his  services  in  accordance 
with  the  terms  thereof,  as  a  condition  of  his  being  sworn 
as  a  witness.56 

EXTRA  FEES  FOR  EXTRA  SERVICES. — If  a  physician  at  the 
request  of  a  party  to  a  suit,  performs  extra  services,  such 
as  assisting  the  attorney,  it  is  entirely  proper  and  legal  for 
him  to  receive  pay  therefor,  and  to  make  an  agreement 
whereby  he  is  to  receive  such  payment.57  If  he  testifies 
without  an  express  agreement  as  to  the  amount  of  his  com- 


53  Ex  parte  Dement,   53  Ala.,  389;   Dixon  v.  People,  168  111.,  179. 
5t  Buchman  v.  State,  59  Ind.,  10. 

55  Dixon   v.    People,    168    111.,    179. 

56  Walker  v.  Cook,  33  111.  App.,  561,  565. 

57  Lewis  v.  Blye,  79  111.  App.,  256. 


108  MEDICAL   JURISPRUDENCE. 

pensation,  he  cannot  afterwards  recover  more  than  the 
statutory  fee.58 

POST-MORTEM  FOR  CORONER. — Where  there  is  no  law  mak- 
ing the  county  liable  for  services  of  a  physician  employed 
by  the  coroner  of  the  county  to  make  an  examination  of  a 
dead  body  and  hold  a  post-mortem  thereon  for  the  purpose 
of  enabling  him  to  give  expert  testimony  at  an  inquest,  the 
physician  must  look  to  the  coroner  for  his  compensation, 
and  unless  a  previous  arrangement  was  made  with  the 
coroner  as  to  the  amount  of  his  fee  he  doubtless  would  be 
entitled  only  to  the  usual  witness  fee.59 


58  Ex  parts  Dement,  53  Ala.,  389;   Sumner  v.   State,  5  Tex.  App.,  365. 

59  Piatt  v.  Knott,   99   111.  App.,  420. 


CHAPTER  X. 
AGREEMENT  FOR  SURGICAL  OPERATION. 

Elements  of  the  Agreement. — The  question  is  purely  one 
of  contract,  and  we  must  look  to  that  subject  for  the  prin- 
ciples to  be  applied.  Whatever  right  or  authority  the 
surgeon  has  in  the  premises  he  derives  by  agreement,  ex- 
press and  implied,  with  his  patient. 

IMPLIED  STIPULATIONS. — Express  executory  agreements 
seldom  contain  everything  which  was  in  the  contemplation 
of  the  parties  at  the  time.  Some  terms  may  be  unexpressed 
because  considered  self-evident.  Some  elements  may  be 
omitted  by  oversight.  What  is  implied  in  an  express  execu- 
tory contract  is  as  much  a  part  of  the  agreement  as  what 
is  expressed.1  The  rule  of  reason  is  inherent  in  mental 
processes  and  must  always  be  applied  in  human  trans- 
actions.2 To  the  express  stipulations  of  an  executory  con- 
tract the  law  ingrafts, — 

(1)  Those  elements  which  are  essential  to  complete  the 
contract  as  the  parties  must  have  intended  it,  and  which 
(a)  are  reasonable  and  necessary  inferences  from  the  ex- 
press stipulations  and  the  circumstances,  or  (b)  were  rea- 
sonably in  the  minds  of  the  parties  at  the  time,  and 

(2)  Those  elements  which,  although  not  manifestly  in 
the  contemplation  of  the  parties  at  the  time,  are  essential 
(a)  to  a  rational  execution  of  the  agreement,  or  (b)  to  the 
attainment  of  the  general  purposes  of  the  agreement.3 

Nature  of  Agreement. — Usually  the  express  stipulations 


1  Hart  v.  Otis,   41  111.  App.,  431,  432. 

2  Holy  Trinity  Church  v.  United  States,   143  U.   S.,  457. 

3  See  Hadley  v.  Baxendale,  2  0.  L.  B.,  517. 

109 


110  MEDICAL   JUKISPKUDENCE. 

for  a  surgical  operation  are  very  meagre  and  are  clothed 
in  the  most  general  terms.  Often  the  essential  features 
are  not  discussed.  Details  are  almost  never  referred  to. 
We  must  look  to  the  purpose  of  the  operation  and  the  other 
circumstances  to  find,  by  inference,  the  terms  of  the  agree- 
ment. Where  the  facts  are  not  disputed  and  only  one  con- 
clusion can  be  reasonably  drawn  therefrom,  such  inference 
may  be  a  conclusive  presumption  of  fact  and,  therefore, 
become  a  part  of  the  contract,  as  a  matter  of  law;  that  is, 
where  the  only  reasonable  inference  from  the  facts  and  cir- 
cumstances is  in  favor  of  the  exercise  by  the  surgeon  of 
certain  authority,  such  authority  should  be  considered  as 
being  within  the  purview  of  the  original  contract  of  em- 
ployment, as  a  matter  of  law.  Where  the  only  reasonable 
inference  from  the  stipulations  and  the  circumstances  neg- 
atives the  right  of  the  operator  to  exercise  a  certain  dis- 
cretion, the  exercise  of  such  right  by  the  operator  should 
be  considered,  as  a  matter  of  law,  to  be  no  part  of  the  con- 
tract. However,  if  the  legitimate  inference  to  be  drawn 
from  the  stipulations  and  the  circumstances  would  either 
affirm  or  deny  the  right  to  perform  a  certain  act,  then  the 
question  of  the  authority  of  the  operator  to  perform  such 
act  should  be  left  to  the  jury  to  be  determined  as  a  matter 
of  fact ;  in  other  words,  where  reasonable  men,  uninfluenced 
by  ulterior  motives,  might  arrive  at  different  conclusions 
as  to  the  authority  for  the  act,  under  the  stipulations  and 
the  circumstances,  then  the  question  of  authority  should  be 
left  to  the  jury  as  one  of  fact. 

Surgeon's  Discretion. — The  surgeon  cannot  go  beyond  the 
authority  given  him  by  the  patient.  To  this  proposition 
there  can  be  no  exception.  The  difficulty  lies  in  determin- 
ing the  extent  of  his  authority.  Generally  it  must  be  in- 
ferred in  great  measure  from  the  circumstances.  Not  his 
wish,  but  the  patient's  welfare  must  control  when  stipula- 


AGREEMENT  FOB  SURGICAL  OPERATION.         Ill 

tions  do  not  cover  the  point;  but  even  his  notion  of  the 
patient's  welfare  must  give  way  to  the  expressed  wish  of 
the  latter.  Where  the  patient  has  decided,  there  is  no  occa- 
sion for  the  exercise  of  the  surgeon's  discretion.  He  is 
bound  by  his  patient's  conclusion.  Where  there  is  an 
express  stipulation  there  cannot  be  an  implied  one  inconsist- 
ent therewith.  Where  a  specific  operation  has  been  agreed 
upon  and  the  attending  circumstances  are  such  as  to  neg- 
ative the  idea  of  an  intention  on  the  part  of  the  patient  to 
lodge  a  discretion  in  the  operator,  any  departure  from  the 
specified  operation  by  the  latter,  would  be  a  trespass,  for 
which  he  may  be  required  to  respond  in  damages.  What 
was  fairly  within  the  mind  of  the  patient?  That  was  im- 
plied. What  does  the  welfare  of  the  patient  require?  In 
the  absence  of  inconsistent  stipulations,  the  patient  will  be 
presumed  to  have  intended  and  authorized  what  was  for  his 
best  welfare.  Anything  which,  within  the  discretion  of  the 
practitioner,  was  reasonably  necessary  to  accomplish  the 
general  purpose  of  the  operation,  will  also  be  presumed  to 
have  been  intended  by  the  patient. 

Consent  Necessary. — Consent  of  the  patient  is  indis- 
pensable to  the  justification  of  a  surgical  operation.  It  is 
an  absolute  right  of  the  patient  to  determine  what  he  wants 
done,  and  his  will  must  prevail.  Without  consent,  such  an 
operation  is  a  trespass.4 

MOTIVE. — An  unauthorized  operation  is  a  trespass  regard- 
less of  the  motive  which  prompted  the  operator.  The  basis 
of  the  liability  is  the  wrongful  invasion  of  the  person,  and 
proper  motive  is  neither  justification  nor  excuse  for  the 
assault.  The  only  relation  of  motive  to  the  offense  is  its 
effect  on  the  damages  to  be  recovered.  Where  the  motive 
was  good  and  the  act  performed  free  from  negligence,  the 
law  allows  only  compensatory  damages,  but  never  less  than 


*  Pratt  v.  Davis,  224  111.,  300. 


112  MEDICAL   JURISPRUDENCE. 

nominal,  while  in  a  case  involving  evil  motive  or  reckless 
disregard  of  the  wishes  of  the  patient,  the  injured  party 
may  recover  punitive  damages  in  addition  to  his  actual  loss. 

CONSENT  MAY  BE  IMPLIED. — Knowingly  submitting  to  a 
particular  operation  or  course  of  treatment,  by  an  adult, 
implies  consent  thereto.  Where  a  patient,  without  objec- 
tion, voluntarily  submits  to  an  operation,  or  a  course  of 
treatment,  his  specific  consent  will  be  presumed  as  such 
conduct  is  prima  facie  evidence  of  his  consenting  mind.4a 
When  a  person  has  selected  a  surgeon  to  operate  upon  him, 
and  has  appointed  no  other  person  to  represent  him  during 
the  period  of  unconsciousness  which  constitutes  a  part  of 
such  operation,  the  laiv  casts  upon  the  operator  the  responsi- 
bility of  so  acting,  in  good  faith,  in  the  interest  of  his  patient, 
within  the  reasonable  scope  of  his  employment  and  the  gen- 
eral purpose  of  the  relief  sought,  that  the  latter  shall  receive 
the  fullest  benefit  of  that  professional  judgment  and  skill 
to  which  he  is  legally  entitled.5 

WHOSE  CONSENT  is  NECESSARY. — In  case  of  an  adult,  not 
under  mental  disability,  his  consent  alone  is  sufficient  to 
justify  a  practitioner  in  performing  any  reasonable  opera- 
tion within  the  scope  of  his  profession  and  employment. 
Consent  of  the  parent  is  usually  necessary  to  authorize  work 
of  a  radical  nature  on  a  minor  who  has  not  arrived  at  the 
age  of  mature  discretion.  A  person  standing  in  the  rela- 
tion of  a  parent  would  be  qualified  to  authorize  the  services 
and  relieve  the  practitioner  of  a  charge  of  trespass  for  per- 
forming the  operation.  When  the  minor  resides  with  his 
parents,  an  adult  sister  could  not  be  said  to  stand  in  loco 
parentis  and,  therefore,  her  consent  would  not  be  sufficient 
authority.6  In  the  case  last  cited,  the  patient  was  a  minor 
about  ten  years  of  age.  While  on  a  visit  with  an  adult 


4a  State  v.  Housekeeper,  70  Md.,   162. 

5  Brennan  v.  Parsonett,  83  N.  J.  L.,  20 ;  83  Atl.,  948. 

6  Rishworth  v.  Moss., — Tex., — ;    159    S.   W.,    122. 


AGREEMENT  FOR  SURGICAL  OPERATION.         113 

sister,  she  was  taken  by  tlie  sister  to  the  surgeon  for  exam- 
ination for  adenoids.  After  examination,  the  surgeon  rec- 
ommended an  operation  to  which  the  adult  sister  consented, 
and  the  child  acquiesced  therein.  The  child  died  under  the 
influence  of  the  anesthetic  without  any  fault  on  the  part  of 
the  operator. 

It  has  been  held  that  failure  to  get  the  consent  of  the 
father  before  administering  a  general  anesthetic  to  a  youth 
17  years  old  who,  in  company  with  adult  relatives,  applied 
to  a  surgeon  to  be  relieved  of  a  small  tumor  on  the  ear, 
will  not  render  the  surgeon  liable  to  the  father  for  the  death 
of  the  boy  while  under  its  influence,  where  it  appears  that 
the  son  left  the  home  of  the  father  for  the  express  pur- 
pose of  consulting  a  specialist  about  his  affliction,  returned 
to  the  home  to  await  the  report  of  an  analysis,  and  there- 
after again  went  to  the  office  of  the  surgeon  with  his  adult 
relatives  to  get  the  surgeon's  final  report  and  recommenda- 
tion, and  gave  his  consent  to  the  administration  of  an  anes- 
thetic and  the  performance  of  the  operation.  Here  consent 
may  reasonably  be  implied ;  the  father  apparently  gave  the 
boy  authority  to  consent  for  him.7 

Form  of  Action. — Where  there  was  no  consent  on  the  part 
of  the  parent,  and  the  minor  dies  notwithstanding  there  is 
no  negligence,  the  father  would  not  have  a  right  of  action 
under  a  statute  based  on  Lord  Campbell's  Act,  because  the 
want  of  consent  did  not  cause  the  death.  Where  the  only 
cause  of  complaint  is  want  of  consent  by  the  parent,  the  right 
of  action  would  be  in  the  parent  for  loss  of  services  whether 
from  disability  or  death  resulting  from  the  anesthetic  or 
operation.  In  case  of  death,  the  question  of  the  survival 
of  the  right  of  action  may  be  an  important  factor  under 
some  statutes. 

Presumptions. — FROM    CONSENT    AND    CIRCUMSTANCES. — 


7  Baker  v.  Welsh,  144  Mich.,  632. 


114  MEDICAL    JURISPRUDENCE. 

Mere  consent  to  an  operation  does  not  extend  the  agreement 
beyond  the  reasonable  limits  of  the  specific  relief  stipulated 
at  the  time  the  patient  goes  under  the  influence  of  the  drug. 
An  agreement  with  reference  to  the  performance  of  an 
operation  does  not  imply  consent  to  an  entirely  different  or 
more  extensive  invasion  of  the  body.  In  fact,  under  the 
doctrine  that  the  specification  of  one  is  the  exclusion  of 
others,  the  right  to  perform  a  distinctly  different  operation 
would  apparently  be  specifically  prohibited.  The  mere  em- 
ployment of  a  surgeon  to  perform  an  operation  does  not 
give  him  implied  authority  to  do  whatever,  in  his  discretion, 
he  may  deem  necessary  or  expedient  without  consulting  the 
wishes  of  his  patient.  Great  though  his  responsibilities 
are,  they  do  not  confer  upon  him  unlimited,  arbitrary  and 
absolute  power  to  treat  his  patient  in  accordance  with  his 
own  judgment  without  reference  to  the  wishes  of  the  latter. 
Surgical  operations  cannot  be  performed  as  you  erect  a 
house,  build  a  city,  or  construct  a  machine, — according  to 
plans  and  specifications.  Plans  and  procedure  must  be 
varied  to  meet  emergencies.  The  welfare  of  the  patient 
demands  that  the  operator  shall  have  implied  power  to  deal 
with  unforeseen  incidents  and  unexpected  conditions  as  they 
arise  in  the  progress  of  the  stipulated  operation,  in  such 
manner  as  he  shall  consider  proper,  and  a  reasonable  depart- 
ure from  the  exact  purpose  and  scope  of  the  original  opera- 
tion, for  the  benefit  of  the  patient,  ought  not  and,  as  a  mat- 
ter of  law,  does  not  make  the  operator  liable  for  malprac- 
tice.8 

FROM  SURGEON'S  DUTY. — The  implication  of  authority 
must  necessarily  be  as  great  as  the  implication  of  the  re- 
sponsibility of  the  surgeon  in  the  premises.  In  fact  there 
should  be  some  latitude  for  the  exercise  of  the  operator's 
discretion  and,  doubtless,  such  right  must  have  been  con- 


8  Pratt  v.  Davis,  224  HI.,  300,  309. 


AGREEMENT  FOE  SURGICAL  OPERATION.         115 

templated  by  the  parties.  The  implied  consent  of  the 
patient  must  be  broader  than  the  operator's  duty,  for  there 
must  be  a  field  within  which  the  latter  may  use  his  dis- 
cretion. There  can  be  no  duty  on  the  part  of  the  surgeon 
without  an  implication  of  consent  in  reference  thereto  on 
the  part  of  the  patient. 

Controlling  Facts. — When  a  person  agrees  in  general 
terms,  with  a  surgeon,  for  an  operation  for  specific  relief 
and,  in  pursuance  thereof,  takes  a  general  anesthetic  without 
giving  any  special  instructions  to  the  operator,  he  impliedly 
gives  the  latter  authority  to  do  any  act  reasonably  neces- 
sary to  accomplish  the  general  purpose  of  his  specific  em- 
ployment, or  clearly  incident  thereto,  and,  in  his  discretion, 
to  depart  from  the  specific  operation  originally  contem- 
plated, so  far  as  to  give  the  patient  the  fullest  measure  of 
benefit  from  his  skill,  judgment  and  observation,  within  the 
purview  of  the  relief  sought.  Thus,  in  the  Mohr  case, 
infra,  if  the  general  employment  had  been  to  relieve  the 
patient  of  defective  hearing,  and  had  such  relief  been  the 
specific  purpose  of  the  operation  agreed  upon,  the  mere 
fact  that  the  surgeon  made  a  wrong  operative  diagnosis  re- 
sulting in  recommending  an  operation  on  the  wrong  ear, 
should  not  have  limited  his  authority  to  an  operation  on  the 
ear  mentioned,  because  the  patient  was  entitled  to  have  the 
benefit  of  his  skill  and  best  judgment  at  all  times.  Neither 
party  should  be  bound  by  the  mistake.  On  the  other  hand, 
if  the  relative  conditions  of  the  ears  changed  between  the 
examination  and  the  operation,  the  surgeon  should  be  con- 
sidered as  having  the  implied  authority  to  deal  with  condi- 
tions as  he  found  them  at  the  time,  keeping  in  view  the  gen- 
eral purpose  of  his  employment — to  relieve  defective  hear- 
ing. 

Emergency. — The  surgeon  is  sometimes  confronted  with 
an  emergency  requiring  immediate  operation,  under  circum- 


116  MEDICAL   JURISPRUDENCE. 

stances  where  express  consent  is  impossible,  as  in  case  where 
a  party  is  unconscious  from  an  injury,  where  no  one  is 
present  who,  in  law,  might  be  presumed  to  have  authority  to 
speak  for  him.  In  such  case  the  consent  of  the  patient,  if 
an  adult,  or  of  the  parent,  if  the  patient  is  a  minor,  is 
presumed.  Here  the  constructive  consent,  presumed  by 
law  from  the  necessity  of  the  situation,  goes  only  to  the  per- 
formance of  the  usual  and  ordinary  operation  to  relieve  the 
particular  injury  and  meet  the  emergency,  and  no  farther, 
and,  therefore,  would  not  include  an  operation  for  some 
chronic  ailment  with  which  the  injured  party  was  suffering 
at  the  time,  unless  the  same  were  practically  necessary  to 
the  skillful  performance  of  or  recovery  from  the  traumatic 
operation.  Thus,  an  injury  necessitating  entering  the  ab- 
dominal cavity  for  proper  treatment  and  relief,  would  excuse 
the  operator  for  so  doing  and,  in  case  the  patient  is  un- 
conscious and  the  necessity  of  operation  imperative,  consent 
therefor  will  be  presumed,  ex  necessitate;  but  the  circum- 
stances would  not  carry  therewith  authority  to  remove  a 
diseased  ovary,  an  inflamed  appendix,  a  calcined  gall  blad- 
der, a  tumor  or  other  chronic  affliction,  unless  such  organ 
was  involved  in  the  injury,  or  such  operation  were  reason- 
ably necessary  to  a  successful  recovery  from  the  emergent 
operation.9 

More  Than  One  Method  Affecting  the  Patient  Differently. 
— Where  either  of  two  or  more  courses  may  with  equal  pro- 
priety be  pursued,  but  affecting  the  patiently  differently, 
the  surgeon  should  counsel  and  recommend  to  the  patient 
what  should  be  done,  and  how,  but  should  finally  adopt  the 
method  selected  by  the  patient.  If  the  latter  refers  the 
question  back  to  the  operator  he  should  follow  the  course 
which  in  his  best  judgment  is  preferable,  under  all  the  cir- 


e  Cotnam  v.  Wisdom,  83  Ark.,  601. 


AGREEMENT  FOR  SURGICAL  OPERATION.         117 

cumstances,  and  will  be  liable  in  damages  only  in  case  of 
negligence,  even  though  another  practitioner  would  have 
recommended  a  different  course. 

Patient's  Conclusion  Paramount. — It  is  for  the  prac- 
titioner to  examine,  consider  and  recommend;  it  is  for  the 
patient  to  decide.  His  final  determination  must  be  re- 
spected even  though  it  be  clearly  wrong.  The  only  alterna- 
tive to  obeying  that  conclusion,  when  expressed,  is  to  refuse 
to  operate  at  all  and  discharge  the  patient.  Usually  the 
patient  will  accept  and  follow  the  advice  of  his  surgeon, 
given  in  good  faith  after  proper  diagnosis  and  considera- 
tion ;  but  when  he  will  not  do  so,  his  wishes  must  control  in 
all  operations  undertaken.  Merely  because  the  prac- 
titioner's judgment  ought  to  be  better  than  the  judgment  of 
his  patient  is  no  sufficient  reason  why  the  judgment  of  the 
former  should  prevail.  This  applies  with  special  force 
where  major  operations  are  involved. 

Operating  at  Patient's  Request. — A  surgeon,  however,  is 
not  always  justified  in  performing  a  surgical  operation 
merely  because  the  patient  requests  it.  Still,  having  in 
good  faith  given  proper  advice,  which  the  patient  refuses 
to  adopt,  the  surgeon  will  not  be  liable  in  damages  for  doing, 
in  a  proper  manner,  what  he  was  requested  to  do,  provided 
always  the  patient  was,  in  law,  competent  at  the  time  to 
determine  for  himself,  and  the  character  of  the  operation 
was  not  such  as  to  negative  the  idea  of  good  faith  and  proper 
consideration  for  the  welfare  of  the  patient. 

Good  Faith  of  Operator. — The  surgeon  is  bound  to  exer- 
cise the  utmost  good  faith  and  fair  dealing  towards  his 
patient  in  respect  to  the  operation  to  be  performed  and  any 
material  deception  will  convert  his  efforts  into  an  assault 
justifying  punitive  damages,  regardless  of  his  real  motives. 
He  dare  not  falsely  pretend  that  only  a  slight  operation  is 


118  MEDICAL   JURISPRUDENCE. 

necessary  and  contemplated  and  then,  after  his  patient  is 
under  the  influence  of  an  anesthetic,  perform  a  more  exten- 
sive and  serious  operation.10 

Departure  from  Agreed  Operation. — A  surgeon  may  not 
materially  depart  from  the  operation  originally  stipulated 
without  the  consent  of  his  patient.  This  question  does  not 
arise  in  cases  where  the  surgeon,  during  the  progress  of  the 
operation,  discovers  unexpected  conditions  necessitating  a 
greater  invasion  of  the  body  and  the  removal  of  more  tissue 
than  at  first  contemplated.  In  such  case  he  performs  the 
operation  specified  but  is  required  to  do  more  than  orig- 
inally supposed.  Perhaps  he  intended  to  amputate  a  limb 
just  above  the  knee,  but  finds  that  he  can  save  only  a  few 
inches  of  femur.  Perhaps  he  operates  for  a  tumor  and  in 
addition  removes  several  smaller  offenders;  or  in  excising 
a  gall  bladder  he  discovers  and  closes  a  perforation  in  the 
stomach.  These  are  fairly  within  the  purview  of  the 
agreed  undertaking;  but  an  agreement  to  operate  on  the 
right  ear  may  not  be  an  agreement  to  operate  on  the  left 
instead,  even  though  for  the  same  cause.  Consent  to  close 
a  hernia  on  the  left  side  of  the  abdomen  may  not  imply  the 
right  to  substitute  therefor  an  operation  on  the  right  groin, 
although  the  latter  is  more  imperatively  needed.  Consent 
to  curettage  could  scarcely  be  regarded  as  including  permis- 
sion to  remove  the  uterus  and  corelated  organs. 

QUESTION  OF  FACT. — What  will  constitute  a  departure  may 
be  a  question  of  fact.11  It  is  impossible  to  lay  down  any 
strict  rule  for  determining  what  constitutes  an  improper 
departure  from  the  specific  agreement  between  patient  and 
operator,  since  each  case  must  depend  upon  its  own  special 
facts.  Whether  there  was  such  a  substantial  departure 
from  the  scope  and  purpose  of  his  employment  as  to  neg- 


10  Pratt  v.  Davis,   224  .111.,   300. 

11  Mohr  v.  Williams,    95   Minn.,   261;    Rolater   v.   Strain,    39   Okl.,    572.    137   Pac.,   96. 


AGREEMENT  FOB  SURGICAL  OPERATION.         119 

ative  the  idea  of  consent  must  be  determined  from  a  consid- 
eration of  all  the  circumstances  in  the  case,  including  the 
general  purpose  of  the  employment,  the  character  of  the 
operation  specified  and  of  the  one  actually  performed,  their 
relation  to  the  relief  sought,  the  exigency  of  the  situation, 
the  general  welfare  of  the  patient,  the  good  faith  and  fair 
dealing  of  the  operator. 

SURGEON,  AGENT  FOR  PATIENT. — The  suggested  fiction  that 
the  surgeon  becomes  the  agent  of  the  patient  under  an  anes- 
thetic only  complicates  matters,  since  the  same  questions 
arise  in  determining  his  authority  as  agent,  and  must  be 
answered  on  the  same  state  of  facts. 

Prohibited  Act,  or  Operation. — In  no  event  is  the  operator 
justified  in  performing  an  operation  which  the  patient  has 
expressly  forbidden.  Even  though  he  may  consider  that  the 
health  and  welfare  of  the  patient  demand  immediate  opera- 
tion, he  has  no  right  to  disregard  the  prohibition  of  the 
latter. 

ILLUSTRATIONS. — About  sixty  days  after  stepping  on  a  nail, 
a  patient,  still  suffering  from  an  inflamed  and  open  wound 
at  the  first  joint  of  the  great  toe  of  her  right  foot,  consulted 
a  surgeon  with  reference  to  an  operation.  He  advised  her 
that  an  operation  was  necessary  to  effect  a  cure,  and  that 
the  operation  would  consist  in  making  an  incision  in  the  foot 
or  toe  so  as  to  drain  the  joint  and  remove  any  foreign  mat- 
ter that  might  be  found  therein.  The  patient  agreed  to  such 
operation.  She  was  taken  to  a  hospital  and  an  anesthetic 
administered,  and  the  operation  performed.  In  performing 
the  operation  a  sesamoid  bone  was  removed,  and  the  cause 
of  action  was  based  on  this  removal.  There  was  no  claim 
that  the  operation  was  unskillfully  performed,  but  the  pa- 
tient alleged  that  she  consented  to  the  operation  upon  the 
express  condition  that  no  bone  should  be  removed  from 
her  foot,  and  that  by  reason  of  the  removal  the  foot  had  been 


120  MEDICAL   JURISPRUDENCE. 

permanently  injured  and  she  had  suffered  great  pain  and 
distress  of  body  and  mind.  The  surgeon  claimed  that  he 
was  employed  as  her  physician  to  drain  the  wound ;  that  in 
compliance  with  said  employment  he  made  an  incision  into 
the  toe;  that  before  reaching  the  joint,  so  as  to  drain  the 
same,  he  found  it  covered  with  a  sesamoid  bone  which  ren- 
dered it  impossible  to  drain  the  joint  without  the  removal 
of  said  bone ;  that  said  bone  was  in  an  unusual  place  on  the 
side  of  the  toe  and  its  presence  could  not  be  ascertained  by 
an  examination ;  that  had  the  bone  not  been  removed  and  the 
joint  properly  drained,  serious  results  would  have  followed ; 
that  the  removal  was  necessary  to  effect  a  cure;  that  said 
bone  is  not  considered  one  of  the  bones  of  the  human  anat- 
omy and  was  not  within  the  contemplation  of  the  parties  at 
the  time  the  surgeon  consented  to  operate.  The  issues  were 
submitted  to  a  jury  which  found  for  the  plaintiff  and  gave 
her  $1000  damages,  on  which  judgment  was  rendered. 
Held- 

(a)  That  the  plaintiff  in  error  had  no  authority  to  remove 
a  sesamoid  bone  from  the  patient's  foot  without  her  consent, 
either  express  or  implied. 

(b)  That  she  did  not  expressly  consent,  and  whether  or 
not  her  consent  was  implied,  from  the  circumstances,  was  a 
question  for  the  jury  to  determine  under  all  the  evidence. 

(c)  That  the  inhibition  to  remove  any  bone  from  her  foot 
might,  as  a  matter  of  fact,  include  a  sesamoid  bone,  even 
though  such  bones  are  not  usually  contemplated  by  surgeons 
when  speaking  of  the  bones  of  the  body. 

(d)  That  if  the  patient  did  not  consent,  the  removal  of 
the  sesamoid  bone  was  wrongful  and  unlawful  and  consti- 
tuted in  law  a  trespass  upon  her  person  and  a  technical 
assault  and  battery.12 

In  a  certain  English  case,13  a  young  lady  consulted  an 


12  Rolater  v.  Strain,   89  Old.,   572,  137  Pac.,  96. 

13  Baty  v.  Cullingworth,  decided  in  London  in  1896. 


AGREEMENT  FOB  SURGICAL  OPERATION.         121 

eminent  surgeon  relative  to  some  ovarian  trouble,  and  before 
consenting  to  an  operation  told  him  that  if  he  found  only 
one  ovary  diseased  he  should  remove  it,  but  if  both  were  in- 
volved he  must  not  remove  either.  To  this  express  inhibition 
the  surgeon  claims  to  have  replied:  "You  must  leave  that 
to  me."  The  patient  claims  that  she  did  not  hear  such  re- 
mark. Upon  opening  up  the  cavity  both  organs  were  found 
to  be  badly  diseased  and  the  surgeon  removed  them.  The 
patient  brought  action  for  damages  for  operating  in  viola- 
tion of  instructions.  There  was  evidence  to  the  effect  that 
her  health  and,  possibly,  her  life  required  the  excision  of  the 
organs.  There  was  no  claim  of  unskillfulness  or  careless- 
ness. The  court  instructed  the  jury  to  find  for  the  surgeon ; 
thus  holding,  as  a  matter  of  law,  that  the  patient  had  con- 
sented. Such  holding  is  clearly  wrong,  as  the  jury  should 
have  passed  upon  the  question  as  to  whether,  under  the  cir- 
cumstances, the  patient  did  in  fact  leave  the  entire  matter 
to  the  discretion  of  the  surgeon.  In  view  of  her  express 
prohibition,  if  she  did  not  hear  his  alleged  reply,  and  if  she 
did  not  withdraw  her  instructions,  he  was  a  trespasser  ab 
initio,  whatever  may  have  been  his  motives  and  regardless 
of  what  he  thought  her  health  and  welfare  required. 

In  an  action  for  assault  and  battery,  brought  against  a 
surgeon  by  a  patient,  the  facts  were  as  follows :  The  patient 
had  been  operated  upon  a  couple  of  years  before  for  a  rup- 
ture on  the  left  side,  and  it  was  causing  him  some  trouble. 
He  consulted  with  the  surgeon  with  reference  to  the  same 
and,  apparently,  the  surgeon's  diagnosis  was  limited  to  an 
examination  of  the  specific  rupture.  The  defendant  advised 
an  operation  but  it  appears  that  while  such  operation  was 
advisable  it  was  not  imperative.  After  the  anesthetic  had 
been  administered  the  surgeon  discovered  on  the  right  side 
a  hernia  which  was  a  serious  menace  to  the  patient,  and  of  a 
character  to  cause  his  death  should  strangulation  occur,  and 


122  MEDICAL   JURISPRUDENCE. 

operated  for  the  latter  trouble  without  first  procuring  the 
patient's  consent.  The  trial  court  correctly  stated  the  law, 
to  the  effect  that  the  patient  must  be  the  final  arbiter  to 
decide  whether  or  not  he  will  take  the  chances  of  an  opera- 
tion, and  that  his  consent,  express  or  implied,  must  be  given 
before  a  surgeon  can  lawfully  operate;  but  the  court  held 
that  the  consent  to  operate  for  one  hernia,  under  the  circum- 
stances, was  not,  as  a  matter  of  law,  an  implied  consent  to 
operate  for  the  other  and  left  the  question  of  consent  to  the 
jury,  as  one  of  fact.  The  jury  found  that  the  patient  did  not 
consent  and  rendered  a  verdict  of  one  thousand  dollars 
against  the  surgeon.  On  appeal,  the  upper  court  ostensibly 
rejecting  this  rule  as  being  unsuited  to  modern  operations, 
held  that  under  the  circumstances  consent  was  reasonably 
implied.14 

In  a  widely  quoted  case,  the  patient  was  taken  by  her  fam- 
ily physician  to  a  specialist  for  examination  of  her  hearing. 
After  examining  both  ears  the  expert  decided  an  operation 
on  the  right  ear  was  necessary.  Later,  the  patient  sub- 
mitted to  an  operation  for  that  purpose,  and  after  she  was 
under  the  influence  of  a  general  anesthetic  and  the  surgeon 
examined  the  right  ear,  he  found  that  such  operation  was 
not  imperative  at  that  time,  but,  upon  examination  of  the 
left  ear,  he  found  it  in  such  condition  as  to  demand  im- 
mediate attention.  Without  waiting  for  the  patient  to  re- 
cover from  the  anesthetic  and  getting  her  consent,  he  aban- 
doned the  operation  on  the  right  ear  and  operated  on  the 
left.  It  may  be  inferred  from  the  opinion  that  the  opera- 
tion was  upon  the  middle  ear,  through  the  drum,  from  the 
outside.  The  operation  originally  contemplated  would 
apparently  have  required  a  similar  invasion  of  the  body  on 
the  right  side  of  the  head.  After  leaving  the  hospital  the 
patient  brought  an  action  for  assault  and  battery  against  the 


14  Brennan  v.  Parsonett,  83  N.  J.  L.,  20 ;  83  Atl.,  948. 


AGREEMENT  FOB  SURGICAL  OPERATION.         123 

surgeon.  She  was  successful  before  the  jury  and  obtained 
a  verdict  for  $14,322.50.  The  defendant  moved  for  a  new 
trial  and  also  for  judgment  against  the  plaintiff  dismissing 
the  suit,  notwithstanding  the  verdict,  on  the  grounds  (a) 
that  the  patient's  consent  was  not  necessary;  (b)  that  the 
patient  did,  in  fact,  consent  to  the  operation  as  performed ; 
and  (c)  that  the  consent  of  the  patient  was  implied  under 
the  circumstances.  The  motion  for  a  new  trial  was  allowed 
on  the  ground  that  the  verdict  was  excessive,  and  the  plain- 
tiff appealed  therefrom,  but  the  motion  to  dismiss  the  suit 
was  denied  and  the  defendant  appealed  from  that  part  of 
the  order.  The  court  found  that  the  operation  was  success- 
fully and  skillfully  performed,  and  was  of  a  generally  ben- 
eficial nature  to  the  patient.  There  was  no  bad  faith  shown 
on  the  part  of  the  operator.  This  case  appears  to  be  quite 
generally  misunderstood.  The  opinion  shows  a  thorough 
consideration  of  the  subject  by  the  court  and  is  in  perfect 
consonance  with  the  rights  of  all  parties  concerned,  though 
it  is  barely  possible  that  the  defendant's  motion  to  dismiss 
should  have  been  sustained  on  the  ground  that  the  consent 
of  the  patient  was  implied.15 

Damages  for  Unauthorized  Operation. — In  determining 
the  amount  of  damage  for  an  operation  beyond  the  purpose 
and  scope  authorized,  the  jury  should  take  into  consideration 
the  character  of  the  injury  inflicted,  the  good  faith  of  the 
operator,  the  reasonableness  of  what  he  did,  in  view  of  the 
general  purpose  of  his  employment,  the  nature  and  exigency 
of  the  malady  which  was  the  subject  of  the  engagement  and 
of  the  disorder  actually  treated,  and  the  beneficial  nature 
of  the  operation  performed.16  Even  though  the  services 
were  actually  beneficial  to  the  patient,  still  he  should  recover 
nominal  damages  for  the  technical  trespass,  and  the  opera- 
tor cannot  recover  a  fee  for  his  services  in  that  behalf. 


15  Mohr  v.  Williams,   95   Minn.,   261. 

16  Mohr  v.  Williams,  95  Minn.,  261. 


CHAPTER  XL 
RES  IPSA  LOQUITUR. 

The  Maxim. — The  maxim,  res  ipsa  loquitur,  is  a  well  rec- 
ognized principle  in  the  law  of  evidence  as  applied  to  negli- 
gence cases.  Literally  translated,  the  expression  means 
the  thing  itself  speaks,  or  the  thing  speaks  for  itself. 

Basis  of  the  Maxim. — Like  most  rules  of  evidence  it  has 
its  basis  in  the  nature  of  our  mental  processes.  Thanks  to 
our  faculty  of  reason,  our  knowledge  is  not  confined  to 
information  which  conies  to  us  through  the  senses.  We 
early  learn  the  relation  of  cause  and  effect,  and  that  certain 
causes  always  (or  usually  or  sometimes)  produce  certain 
effects,  so  that  when  either  is  brought  to  the  mental 
consciousness  through  the  senses  the  other  is  deduced  by  a 
mental  process  which,  where  the  relation  always  exists,  be- 
comes so  natural  as  to  be  almost,  if  not  entirely,  without 
conscious  effort.  The  man  who  passes  through  a  tropical 
hurricane,  when  it  is  over,  admittedly  has,  by  memory,  the 
observation  of  his  senses  at  the  time  of  the  fact  of  such  an 
event  and  knows  as  a  matter  of  memory  of  causes  and  effects 
that  such  disturbance  of  the  elements  occurred.  The  man 
who  views  the  devastated  forests,  the  raging  torrents  and 
the  spreading  floods,  with  their  usual  concomitants,  by  a 
simple  process  of  reasoning,  based  upon  past  experiences, 
knows  that  nature  has  experienced  one  of  her  periodic  con- 
vulsions and  thereafter,  the  event  to  him  becomes  a  memory 
of  effects.  In  our  mental  processes  we  go  so  readily  from 
cause  to  effect  and  vice  versa,  as  often  to  confuse  them  in 
thought  and  speech.  Our  minds  are  so  constituted  that  any 

124 


RES   IPSA   LOQUITUR.  125 

given  fact  presupposes  other  facts  in  corelation  therewith, 
both  prior  and  subsequent  thereto.  Every  effect  is  the 
result  of  some  prior  cause,  and  in  its  turn  becomes  the  cause 
of  some  subsequent  effect. 

When  in  the  universal  experience  of  mankind,  a  certain 
familiar  effect  has  but  one  known  cause,  the  presence  of 
the  effect  is  a  conclusive  demonstration  of  the  existence  of 
the  prior  cause,  even  though  the  specific  effect  does  not 
always  result  from  the  given  cause.  Thus,  the  fact  that  a 
woman  is  pregnant  is  unanswerable  proof  of  prior  sexual 
intercourse,  and  hence,  of  sexual  contact  with  some  man.1 

Presumptions. — A  presumption  is  a  hypothetical  or  in- 
ductive inference;  something  that  is  supposed  to  be  true 
upon  grounds  of  probability.  Presumption  is  an  inference 
as  to  the  existence  of  a  fact  from  the  existence  of  some  other 
fact  or  facts  based  upon  previous  experience  of  that  connec- 
tion, implying  relation  or  association,  or  dictated  by  the 
policy  of  administrative  law.  Presumptions  are  inferences 
in  accordance  with  the  common  experience  of  mankind  and 
the  established  principles  of  logic.  The  strength  of  a  pre- 
sumption is  dependent  on  the  closeness  or  uniformity  of 
association  of  the  given  fact  or  facts  with  the  fact  inferred. 
Thus,  from  the  fact  that  the  ground  is  wet,  the  presumption 
that  it  has  rained  will  be  strengthened  according  to  the 
appearance  of  the  ground,  the  extent  of  the  wet  area  and 
other  incidents  exclude  other  causes  for  the  condition. 

KINDS  OF  PRESUMPTIONS. — Writers  on  legal  topics  speak 
of  presumptions  of  fact  and  presumptions  of  law,  and  divide 
the  latter  into  disputable  and  indisputable  presumptions. 
Presumptions  of  law  are  only  strong  presumptions  of  fact. 
Where  public  policy  or  welfare  are  involved,  these  strong 
presumptions  of  fact  are  usually  indisputable  presumptions 
of  law.  Thus,  rational  men  usually  intend  the  reasonable 


i  Thrasher  v.   State,   92   Neb.,   110. 


126  MEDICAL   JURISPRUDENCE. 

and  probable  consequences  of  their  conscious  acts  and,  there- 
fore, where  the  act  is  wrongful,  the  law  conclusively  pre- 
sumes such  intent.  A  party  will  not  be  permitted  to  show 
that  he  really  intended  otherwise.  In  criminal  law  an  act 
is  inevitably  characterized  by  its  consequences,  when  reason- 
able and  probable,  regardless  of  the  real  intent  of  the  actor. 
In  this  connection  we  are  interested  only  in  certain  pre- 
sumptions of  fact  in  which  no  questions  of  the  policy  of  the 
law  are  involved.  They  are  only  the  application  of  the 
principles  of  logic  to  the  ascertainment  of  facts  which  are 
the  subject  of  inquiry  in  judicial  tribunals. 

Presumption  Upon  Presumption. — As  a  matter  of  evi- 
dence a  presumption  cannot  be  based  upon  a  presumption. 
Thus,  it  is  too  remote  to  presume  an  accidental  injury  from 
lifting  a  box,  when  the  fact  of  lifting  the  box  must  be  pre- 
sumed from  facts  and  circumstances.2  Here  there  was  suf- 
ficient evidence  to  justify  the  inference  that  the  patient  did 
lift  and  carry  the  box  in  question,  and  also  that  he  was  in- 
jured by  force  or  violence,  but  there  was  no  evidence  to  con- 
nect the  injury  with  the  handling  of  the  box.  Other  causes 
of  the  injury  were  not  excluded. 

Mental  Convictions. — To  produce  a  given  mental  convic- 
tion some  fact  or  state  of  facts  having  a  probative  tendency 
in  that  direction,  must  be  adduced.  Evidence  precedes 
rational  conviction.  Hence  the  law  naturally  places  upon 
the  party  who  asserts  a  certain  proposition  the  burden  of 
introducing  some  evidence  to  establish  his  contention.  If 
he  alleges  that  his  adversary  was  negligent  whereby  he  was 
injured,  he  must  show  by  some  evidence  both  the  negligence 
and  the  injury.  In  the  law  of  evidence  nothing  is  taken  on 
faith,  and  what  cannot  be  proven,  either  directly  or  from 
inference  from  which  the  possibility  of  mistake  is  sub- 
stantially eliminated,  is  treated  as  though  it  did  not  exist. 


2  Globe  Ace.  Ins.  Co.  v.  Gerisch,   163  111.,  625. 


RES   IPSA   LOQUITUR.  127 

The  law  always  requires  the  best  evidence.  Juries  in  de- 
termining ultimate  facts  may  draw  any  rational,  reasonable 
conclusions  from  the  facts  in  evidence  before  them. 

Application  of  the  Maxim. — Now,  it  sometimes  happens 
that  the  party  complaining  cannot  produce  direct  evidence 
of  the  negligent  act,  the  proof  thereof  being  entirely  within 
the  control  of  his  opponent ;  but  he  may  be  able  to  produce 
abundant  facts  from  which,  unexplained,  reasonable  minds 
would  naturally  draw  the  conclusion  that  the  party  against 
whom  he  complains  was  in  the  wrong.  Therefore, 

The  Reason  for  the  Rule. — The  necessity  of  the  case  con- 
stitutes the  reason  for  the  departure  from  the  usual  rules 
of  evidence  in  such  cases.  If  the  general  rule  were  to  be 
applied  justice  might  sometimes  be  defeated  under  circum- 
stances from  which  all  rational,  unbiased  minds  would  not 
hesitate  to  draw  a  conclusion  of  wrongful  conduct  on  the 
part  of  the  person  sought  to  be  charged.  The  maxim  is  a 
departure  from  the  harshness  of  the  common  law,  in  that  it 
shifts  the  burden  of  explanation  from  the  party  complain- 
ing to  the  party  who  naturally  is  in  the  best  position  to  know 
the  facts. 

When  Maxim  Is  Applicable. — (a)  The  party  against 
whom  it  operates  must  owe  the  injured  party  some  general 
or  special  duty  of  protection  or  care,  and  that  duty  must 
have  been  violated,  and  (b)  the  fact  must  be  such  as,  in  the 
absence  of  explanation,  naturally  raises  an  inference  of  neg- 
ligence on  the  part  of  some  one,  in  which  event  the  party 
owing  the  duty  is  charged  with  the  burden  of  showing  that 
the  occurrence  was  without  his  fault.  It  has  been  said  that 
this  phrase  is  often  used  in  actions  for  injury  by  negligence 
when  no  proof  of  negligence  is  required  beyond  the  occur- 
rence itself,  "which  is  such  as  necessarily  to  involve  negli- 
gence." 3 


3  Bouvier  Law  Dictionary. 


128  MEDICAL   JURISPRUDENCE. 

History  and  Illustrations. — The  doctrine  was  first  applied 
to  a  case  where  a  traveler  on  a  public  highway,  while  passing 
in  front  of  a  building  adjoining  the  same,  was  injured  by  a 
barrel  rolling  out  of  a  second-story  door.  Barrels,  when 
properly  placed,  do  not,  of  their  own  volition,  change  their 
position.  Hence  negligence  of  the  party  in  charge  of  the 
barrel  was  properly  inferred,  and,  as  the  owner  of  property 
adjoining  the  highway  owed  a  person,  rightfully  using  the 
same,  the  special  duty  of  so  using  his  property  as  not  to 
injure  the  other,  the  court  said  that  the  burden  of  explain- 
ing, the  circumstances  under  which  the  barrel  fell,  should 
be  upon  the  owner  in  possession  of  the  property  and  the 
barrel,  as  he  was  in  the  best  position  to  know  the  circum- 
stances leading  up  to  the  accident  and  injury, — in  other 
words,  why  the  barrel  fell.4  As  stated  by  one  authority, 
* '  the  occurrence  itself  is  evidence  of  negligence. '  * 5  The 
doctrine  has  also  been  applied  to  a  case  where  a  pedestrian 
on  a  sidewalk  in  a  city  was  injured  by  a  hammer  falling  from 
a  swinging  scaffold  which  was  being  used  by  workmen  in 
front  of  the  building.6 

Effect  From  More  Than  One  Cause. — The  inference  would 
not  have  arisen  in  the  original  case  if  the  evidence  had  left 
it  uncertain  from  which  of  two  doors,  on  different  premises, 
under  different  control  and  ownership,  the  barrel  fell.  If, 
from  the  evidence,  the  hammer  might  have  fallen  indiffer- 
ently, either  from  a  scaffold  under  the  control  of  A,  or  from 
a  scaffold  under  the  control  of  B,  there  can  be  no  presump- 
tion that  either  A  or  B  specifically  was  negligent.  There 
must  be  at  least  a  preponderance  of  the  evidence  that  it  came 
from  one  rather  than  the  other. 

Where  the  death  of  a  patient  might  have  been  caused  by 


4  Byrne  v.  Boadle,  2  H.  &  0.,  722. 

5  Cunningham  v.  Dady,   191  N.  Y  ,   152,   155;   Ennis  v.  Gray,   87  Hun    (N.  Y.),   355, 
361. 

6  Hunt   v.   Hoyt,   20   111.,    544. 


BBS   IPSA   LOQUITUR.  129 

the  improper  administration  of  an  anesthetic  by  the  prac- 
titioner or  by  calcareous  degeneration  of  the  heart,  the 
practitioner  is  not  liable  unless  it  is  made  to  appear  by  a 
preponderance  of  all  the  evidence  that  death  resulted  either 
wholly  or  in  part  from  the  improper  use  or  negligent  admin- 
istration of  the  anesthetic.7  Where  a  result  may  be  ex- 
plained by  either  of  several  causes  its  presence  does  not 
establish  either,  and  the  greater  the  number  of  probable 
causes  the  weaker  the  inference  of  any  one  cause.8 

As  Applied  to  Physicians  and  Surgeons. — X-RAY. — Burn- 
ing a  patient  by  X-ray  is  prima  facie  evidence  of  negligence, 
that  is  to  say,  the  result,  unexplained,  condemns  the  operator 
and  casts  upon  him  the  burden  of  showing  how  it  happened 
without  his  fault,  and  if  he  fails  he  is  liable.9 

SPONGE  CASES. — This  doctrine  is  illustrated  in  cases  where 
absorbent  gauze  or  sponges,  or  other  foreign  bodies,  are 
left  in  the  abdominal  cavity  after  operations.  The  pres- 
ence of  the  intruder,  left  without  purpose,  impels  the  un- 
biased mind  to  the  inference  that  the  surgeon  in  charge 
failed  to  do  his  whole  duty  and,  because  of  that  inference 
and  the  fact  that  he  owed  the  patient  a  special  duty  of  care 
and  skill,  the  law  casts  on  him  the  burden  of  showing  that 
he  was  without  fault.  Of  all  persons,  he  ought  to  know  why 
the  foreign  substance  was  left  there.  The  broad  equities 
of  the  case  and  common  conscience  demand  that  he  be  called 
upon  to  explain  the  occurrence  and  show,  if  he  can,  that  he 
did  all  that  could  be  done,  or  should  have  been  done,  under 
the  circumstances  to  find  and  remove  all  foreign  objects. 
An  explanation  that  merely  shifts  the  blame  on  others  will 
not  suffice.  In  the  language  of  one  of  our  courts — 

"Why  was  there  left  in  the  parts  a  foreign  substance 
which  the  operating  surgeon  should  have  removed?  It 


TYaggle  v.  Allen,  48  N.  Y.  Supp.,  827. 

8  Ewing  v.  Goode,   78  Fed.,  442. 

9  Shockley  v.  Tucker,  127  Is.,  456. 


130  MEDICAL    JURISPRUDENCE. 

was  for  him  to  acquit  himself  of  negligence  with  respect  to 
it.  The  sponge  escaped  his  observation.  Why?  Was  it 
so  hidden  and  concealed  that  reasonable  care  on  his  part 
would  not  have  disclosed  it,  or  were  conditions  such  that,  in 
his  professional  judgment,  further  exploration  by  him  for 
sponges  would  have  endangered  the  safety  of  the  patient? 
In  a  word,  did  he  do  all  that  reasonable  care  and  skill  would 
require  ?  Except  as  one  or  the  other  of  these  questions  can 
be  answered  affirmatively,  from  the  evidence,  the  law  will 
presume  to  the  contrary  and  attribute  the  unfortunate  con- 
sequences to  his  contributing  negligence.  Neither  does  the 
defendant,  nor  a  single  witness  in  his  behalf,  undertake  to 
give  any  explanation  of  the  fact  that  a  sponge,  which  the 
defendant  should  have  removed,  was  allowed  to  remain, 
except  to  say  that  the  nurses  failed  to  keep  accurate  count. 
From  all  that  appears  in  the  case,  the  retained  sponge  might 
readily  have  been  discovered  by  the  surgeon,  and  reasonable 
prudence  and  care  on  his  part  would  have  avoided  the  acci- 
dent. If  this  were  so,  clearly  his  negligence  contributed 
with  that  of  the  nurses  and  responsibility  therefor,  in  law, 
attached."10 

As  Applied  to  Dentists. — Leaving  part  of  a  brooch  in  a 
tooth  and  closing  up  the  cavity,  should  trouble  afterwards 
result  therefrom,  would  cast  upon  the  operator  the  burden 
of  showing  that  he  was  without  fault  in  the  premises.  The 
presence  of  the  broken  end  of  the  brooch  requires  an  ex- 
planation from  the  person  responsible  for  its  presence,  and 
a  failure  in  this  respect  rightfully  fixes  his  responsibility.11 
A  complete  fracture  of  the  submaxillary,  while  extracting  a 
tooth,  is  of  such  rare  occurrence,  where  proper  care  is  exer- 
cised, as  to  raise  a  presumption  of  negligence  on  the  part  of 
the  extractor,  and  the  law  should  impose  upon  him  the  bur- 


10  Davis  v.  Kerr,  239  Pa.  St.,   351.     See  Palmer  v.  Humiston,   87  Ohio   St.,   351;   Gil- 
lett  v.  Tucker,   67  O.   St.,   106. 

11  Van  Skike  v.  Potter,  53  Neb.,  28. 


RES   IPSA   LOQUITUR.  131 

den  of  showing  that  he  exercised  due  and  reasonable  care 
and  skill  under  the  circumstances.  It  has  been  held,  how- 
ever, that  dislocating  the  jaw  in  extracting  teeth  does  not 
raise  a  presumption  of  negligence.12  Leaving  a  tooth  go 
down  the  windpipe  of  a  patient  who  is  under  the  influence  of 
an  anesthetic  raises  a  presumption  of  negligence  on  the  part 
of  the  operating  dentist  and  casts  upon  him  the  burden  of 
showing  that  the  incident  occurred  without  his  fault.13 

Where  Not  Applicable. — Where  the  inference  is  uncertain 
and  doubtful  the  maxim  does  not  apply.  Thus,  where  the 
evidence  is  uncertain  whether  the  foreign  body  was  left  in 
the  cavity  by  the  operating  surgeon  at  the  time  of  closing  the 
incision  from  the  original  operation,  or  was  put  in  after- 
wards by  others,  independent  of  the  operator,  in  the  course 
of  drainage,  the  doctrine  would  not  apply.14  In  the  Harris 
case  last  cited  there  was  evidence  tending  to  show  that  the 
surgeon  should  have  discovered  the  gauze  during  his  course 
of  treatment  after  the  operation  and  before  the  termination 
of  the  relation. 

Infection. — Ordinarily  the  sequence  of  an  aggravated 
condition,  does  not  raise  any  presumption  of  improper  treat- 
ment. Where  a  condition  can  be  explained  by  either  of 
several  causes,  its  presence  proves  neither.  Thus,  the 
presence  of  infection  following  treatment  does  not  of  itself 
prove  that  the  practitioner  was  at  fault,  because  the  trouble 
may  have  been  introduced  by  other  means,  either  before  or 
after  the  services.15  Evidence  must  be  produced  to  connect 
the  treatment  with  the  untoward  result. 


12  Donoghue  v.  Shane,  170  Mich.,  544;   136  N.  W.,  367. 

13  Keily  v.  Colton,  1  City  Ct.   (N.  Y.),  439;  See  McGehee  v.  Shiftman,  4  Cal.  App.,  50. 

14  Harris  v.  Pall,   177  Fed.,   79;   27  L.  B.  A.,   1174;   Holmes  v.  McKennan,   120   111. 
App.,   320. 

15  Friend  v.  Kramer,  236  Pa.  St.,  618 ;  Ewing  v.  Goode,   78  Fed.,  442. 


CHAPTER  XII. 

CIVIL  MALPRACTICE. 

Obligations  Imposed  by  Law. 

Implied  Conditions  of  the  Relation. — Skill,  care  and 
judgment  are  required  in  the  performance  of  every  duty. 
They  are  inherent  in  our  ideas  of  proper  conduct,  and  are  an 
implied  stipulation  of  every  undertaking.  Their  degree 
varies  with  the  character  of  the  act  in  question,  and  is  pro- 
portionate to  the  nature  of  the  calling  involved  and  the  pur- 
poses and  aims  of  the  efforts.  They  have  a  direct  relation 
to  the  risk  involved. 

Public  Policy. — These  requirements  are  elementary,  and 
the  law  is  merely  declarative  of  the  basic  principles  of  our 
notions  of  right  and  justice.  They  have  their  foundation 
in  most  persuasive  considerations  of  logic,  equity  and  public 
policy.  The  purpose  of  the  law  in  incorporating  these  im- 
plied stipulations  as  binding  obligations  of  the  relation  is 
to  protect  the  health  and  lives  of  the  public  from  the  unskill- 
fulness,  carelessness  and  bad  judgment  of  practitioners  by 
holding  them  liable  to  respond  in  damages  for  injuries  re- 
sulting from  default  in  these  respects.1  Therefore,  ques- 
tions of  skill,  care  and  judgment  are  always  raised  in  actions 
of  malpractice.  The  untoward  result  complained  of  may 
have  happened  because  of  the  ignorance,  carelessness  or  bad 
judgment  of  the  party  sought  to  be  charged. 

Statement  of  the  Obligations. — A  person  who  offers  his 
services  for  employment  in  any  profession,  as  a  practitioner 
in  that  profession,  by  implication  contracts  with  his  em- 
ployer, and  by  positive  requirement  the  law  demands — 


i  Nelson  v.  Harrington,  72  Wis.,  591. 

132 


OBLIGATIONS   IMPOSED   BY   LAW.  133 

FIRST. — That  he  possess  that  reasonable  degree  of  learn- 
ing, skill  and  experience  which  is  usually  possessed  by  mem- 
bers of  the  profession  at  the  time  and  place,  and  which  is 
ordinarily  regarded  by  the  community,  and  by  those  con- 
versant with  that  profession,  as  necessary  and  sufficient 
reasonably  to  qualify  him  for  such  employment : 

SECOND. — That  he  shall  exercise  reasonable  and  ordinary 
care  and  diligence  in  the  exertion  of  his  skill  and  the  applica- 
tion of  his  knowledge  to  accomplish  the  purpose  for  which 
he  is  retained,  and 

THIRD. — That  in  the  exertion  of  his  skill  and  the  applica- 
tion of  his  care  and  diligence,  he  shall  use  his  best  judg- 
ment.2 

Obligations  Measured  by  Liability. — The  implied  obliga- 
tion of  a  practitioner,  retained  to  treat  a  person  profession- 
ally, extends  no  further,  in  the  absence  of  special  agreement, 
than  that  he  will  indemnify  his  patient  against  any  injurious 
consequences  resulting  from  his  want  of  the  proper  degree 
of  skill,  and  from  his  failure  to  exercise  due  care,  under  the 
circumstances,  or  to  use  his  best  judgment  in  the  premises  in 
the  execution  of  his  employment.3 

Requirement  Is  General. — The  same  obligation  rests  upon 
the  practitioner  of  any  profession.  Persons  who  offer 
themselves  to  the  public  as  practitioners  of  any  profession 
thereby  impliedly  promise  the  persons  employing  them  that 
they  possess  the  requisite  skill  and  knowledge  to  enable 
them  to  handle  or  treat  with  reasonable  success  such  cases  as 
they  undertake.  This  rule  does  not  require  the  possession 
of  the  highest,  or  even  the  average,  skill  but  only  such  as 
will  enable  the  practitioner  to  treat  the  cases  undertaken 
safely  and  understandingly.  "  Every  person  who  enters  a 
learned  profession  undertakes  to  bring  to  the  exercise  of  it 


2  Leighton  v.  Sargent,  27  N.  H.,  460;  Kuhn  v.  Brownfield,  34  W.  Va.,  252;  Coombs  v. 
King,  107  Me.,  376;  Whitesell  v.  Hill,  101  la.,  629;  37  L.  B.  A.   (O.  S.),  830,  n. 

3  Craig  v.  Chambers,   17  O.   St.,  253 ;   9  Cyc.  Ev.,  851. 


134  MEDICAL   JURISPRUDENCE. 

a  reasonable  degree  of  skill.  If  he  is  an  attorney,  he  does 
not  undertake  at  all  events  to  gain  the  case;  nor  does  a 
surgeon  undertake  that  he  will  perform  a  cure,  nor  does  the 
latter  undertake  to  use  the  highest  degree  of  skill,  as  there 
may  be  persons  of  higher  education  and  greater  advantages 
than  himself.  However,  he  does  undertake  to  bring  a  fair, 
reasonable  and  competent  degree  of  skill. ' ' 4 

Skill. 

Degree  of  Skill  Required. — In  this  connection  the  word 
skill  is  used  in  the  broadest  sense  and  means  knowledge, 
qualification,  ability,  dexterity.  The  degree  of  skill  re- 
quired is  not  capable  of  exact  determination.  It  can  be 
stated  only  in  relative  terms,  which  are  necessarily  variable 
in  their  nature.  Each  generation — each  moment — takes 
care  of  itself. 

THE  TEST. — The  test  is,  Does  the  practitioner  possess  the 
reasonable  knowledge  and  skill  ordinarily  possessed  by 
members  of  the  profession  in  average  localities  similarly 
situated  at  the  time? 

When  a  person  assumes  the  profession  of  medicine  and 
surgery  but  makes  no  special  representations  as  to  his  skill, 
the  law  implies  that  he  thereby  represents  that  he  has  an 
ordinary  degree  of  skill,  knowledge,  qualification  and  ability 
in  that  respect,  and  holds  him  accountable  to  his  patient 
therefor.5  The  presumption  and  obligation  extend  to  the 
positive  requirement  that  such  skill  shall  be  applied  to  the 
particular  case  in  order  that  the  patient  may  have  the  benefit 
thereof.6  The  law  implies  an  undertaking  on  the  part  of 
the  practitioner  that  he  will  use  reasonable  and  ordinary 
skill  in  the  professional  treatment  of  his  patients.7 


*  Lamphier  v.  Phipos,  8  Car.  &  P.,  478. 

5  Ritchie  v.  West,  23  111.,  329,  330. 

6  Barnes  v.  Means,  82  111.,  379,  384, 

7  Cnitty  on  Contracts,  553. 


OBLIGATIONS   IMPOSED   BY    LAW.  135 

ORDINARY  SKILL. — By  ordinary  skill  is  meant  such  skill  as 
is  commonly  possessed  by  men  engaged  in  the  profession  in 
similar  localities  at  the  time.8  The  standard  of  ordinary 
skill  may  vary  even  in  the  same  State  according  to  the 
greater  or  less  opportunities  afforded  by  the  locality  for 
observation  and  practice.9 

The  reasonable  and  ordinary  skill  which  is  required  of 
practitioners  of  any  profession  is  such  as  those  in  the  same 
general  lines  of  practice  at  the  time  and  in  similarly  situated 
localities,  ordinarily  have  and  exercise.10 

BEST  SKILL. — A  practitioner  is  not  chargeable  with  neg- 
ligence for  failure  to  use  his  own  best  skill,  if  he  uses  the 
skill  which  is  exercised  generally  by  practitioners  of  ordi- 
nary skill  in  similar  localities  at  the  time,  provided  his  con- 
duct is  consistent  with  due  care  and  good  judgment  under 
the  circumstances.11 

HIGHEST  SKILL. — The  law  does  not  require  that  a  physician 
shall  have  the  highest  degree  of  knowledge  and  skill.12  He 
is  not  bound  to  possess  the  highest  degree  of  art  and  skill 
possessed  by  eminent  surgeons  practicing  in  large  cities.13 

AVERAGE  SKILL  NOT  REQUIRED. — The  standard  of  require- 
ment in  this  respect  is  not  even  as  high  as  the  average  skill 
of  the  competent  members  of  the  profession  in  similarly 
situated  communities  generally,  at  the  time,  because  average 
means  midway  between  two  extremes  and,  therefore,  there 
must  be  some  competent  practitioners  on  both  sides  of  the 
line.  In  its  ultimate  analysis  the  standard  of  capacity  is  the 
lowest  qualification  tolerated  by  law.14 

NOT  THE  SKILL  OF  THE  EDUCATED  ONLY. — The  skill  re- 


8  Heath  v.  Glisan,  3  Ore.,  64;   Dashiell  v.  Griffith,   84  Md.,   363. 

9  Smothers  v.  Hanks,  34  la.,   289. 

10  Carpenter  v.  Walker,   170  Ala.,   659. 

11  Dorris  v.  Warford,  124  Ky.,  768;  9  L.  R.  A.,  1090. 

i2McNevins  v.  Lowe,  40  HI.,  209,  210;   Ritchie  v.  West,   23  111.,   329,   330. 

is  Small  v.  Howard,  128  Mass.,  131. 

14  Holtzmnn  v.  Hoy,   118  111.  App.,   534. 


136  MEDICAL   JURISPRUDENCE. 

quired  need  not  be  that  of  thoroughly  educated  practitioners 
only,  but  must  be  that  of  the  average,  having  regard  to  the 
improvement  and  advanced  state  of  the  profession  at  the 
time  of  the  treatment.15 

ONLY  THE  COMPETENT  CONSIDERED. — While  the  law  does 
not  exact  the  highest  degree  of  skill  and  proficiency  obtain- 
able in  a  profession,  still  it  does  not,  on  the  other  hand,  con- 
template mere  average  merit,  including  the  skillful  and  un- 
skillful.16 In  order  to  determine  who  will  come  up  to  the 
legal  standard,  we  are  not  permitted  to  aggregate  into  a 
common  class  the  quacks,  the  charlatans,  the  empirics,  the 
new  men  who  have  had  no  practice,  the  old  ones  who  have 
dropped  out  of  the  practice,  the  skilled  and  the  unskilled, 
the  good  and  the  very  best,  and  then  strike  an  average 
between  them,  as  such  method  would  place  the  standard  too 
low.  In  fixing  a  standard  and  striking  an  average  only  the 
ordinarily  and  reasonably  skillful  should  be  considered. 

LOCALITY  AND  TIME  AFFECT  SKILL  REQUIRED. — A  physician 
practicing  in  a  small  village  who  undertakes  to  perform  a 
difficult  operation,  is  bound  to  possess  that  skill  and  ability 
only  which  physicians  and  surgeons  of  ordinary  ability  and 
skill  practicing  in  similar  localities  at  the  time,  with  oppor- 
tunities for  no  large  experience,  ordinarily  possess.17  In 
determining  what  constitutes  the  reasonable  and  ordinary 
skill  and  diligence  which  it  is  the  duty  of  a  physician  to 
possess  and  exercise,  the  test  is  the  degree  of  skill  and 
diligence  which  other  physicians  in  the  same  general  neigh- 
borhood, and  in  the  same  general  line  of  practice,  at  the 
time,  ordinarily  have  and  practice.18  In  other  words,  a 
physician  must  have  such  skill  as  physicians  in  the  same 
general  neighborhood  in  the  same  general  line  of  practice 


15  Peck  v.  Hutchinson,  88  la.,  320. 

16  Holtzman  v.  Hoy,  118  HI.  App.,  534. 
IT  Small  v.  Howard,  128  Mass.,  131. 
18  Force  v.  Gregory,  63  Conn.,  167. 


OBLIGATIONS   IMPOSED   BY   LAW.  137 

ordinarily  have  and  exercise  in  like  cases.19  A  physician 
is  required  to  use  no  more  skill  than  that  of  the  physicians 
of  his  neighborhood,  if  there  are  other  physicians  there  pre- 
sumably of  average  ability  when  compared  with  similar 
localities. 

In  its  ultimate  analysis  the  rule  means  that  the  practi- 
tioner must  exercise  the  average  degree  of  skill  possessed 
by  ordinarily  and  reasonably  skillful  members  of  the  pro- 
fession in  such  localities  generally,  at  the  time,  and  not  a 
standard  determined  by  the  average  skill  in  his  own  lo- 
cality.20 

DEGREE  OF  SKILL — AILMENT  TREATED. — The  degree  of  skill 
required  has  no  relation  to  the  character  of  the  services  to 
be  performed  in  the  particular  case.  The  standard  of 
knowledge  and  skill  fixed  by  the  law  for  the  practice  of  any 
profession  has  no  relation  to  the  condition  or  disease 
treated,  is  not  in  proportion  to  the  severity  of  the  injury, 
nor  the  nature  of  the  operation,  nor  is  it  dependent  upon 
the  circumstances  of  the  case.21 

PROOF  OF  SKILL. — A  license  is  prima  facie  evidence  of  the 
possession  of  skill  and,  in  the  absence  of  evidence  to  the 
contrary,  is  sufficient  to  establish  that  fact. 

INFERENCE  OF  WANT  OF  SKILL. — If  the  ground  of  com- 
plaint be  stated  as  want  of  skill,  the  evidence  must  have 
reference  to  lack  of  that  qualification  as  displayed  in  the 
particular  case.  It  is  quite  clear  that  the  treatment  might 
show  such  gross  ignorance  of  the  business  of  the  practi- 
tioner as  to  put  it  beyond  all  doubt  that  he  has  not  the 
amount  of  skill  usually  possessed  by  members  of  the  pro- 
fession or  even,  in  fact,  that  he  had  no  knowledge  of  his 
profession  at  all.22  It  might  appear  that  the  course  pur- 


19  Gates  v.  Fleisher,  67  Wis.,  504 ;  Nelson  v.  Harrington,  72  Wis.,  591. 

20  Oramm  v.  Boener,  56  Ind.,  407 ;  Kelsey  v.  Hay,  84  Ind.,  189. 

21  Utely  v.  Burns,  70  111.,   162,   164. 

22  Com.  v.  Thompson,  6  Mass.,  134. 


138  MEDICAL   JURISPRUDENCE. 

sued  was  wholly  unknown  to  the  profession  and  that  it  re- 
sulted, as  it  necessarily  must,  in  detriment  to  the  patient. 
Certainly  nothing  further  would  need  to  be  shown  to  render 
answerable  for  an  injury  done,  one  who  should  offer  his 
services  as  a  skillful  practitioner.23 

SKILL  AT  TIME  OF  SERVICE. — The  inquiry  as  to  skill  must 
be  directed  to  the  time  of  the  alleged  malpractice,  not  to 
a  period  long  subsequent  thereto.  Possession  of  skill  to- 
day does  not  tend  to  establish  skill  two  years  ago.24 

Care. 

Degree  of  Care  Required. — DEFINITION. — Care  is  atten- 
tion with  a  view  to  safety  or  protection;  or  oversight  or 
watchful  regard,  implying  concern  or  a  sense  of  personal 
responsibility,  in  an  endeavor  to  promote  an  aim  or  accom- 
plish a  purpose.  It  is  a  relative  term  and  varies  accord- 
ing to  the  danger  involved  in  the  want  of  vigilance. 

Due  care  means  attention  according  to  circumstances. 
All  the  circumstances  must  be  taken  into  consideration  in 
determining  what  is  due  care. 

As  a  general  rule,  he  who  undertakes  for  reward  to  per- 
form any  work,  is  bound  to  use  a  degree  of  care,  diligence 
and  attention  adequate  to  the  performance  of  his  under- 
taking, according  to  the  rules  of  the  particular  art  involved. 
Care  must  be  proportionate  to  the  extremities  of  the  situ- 
ation. The  degree  of  care,  like  the  degree  of  skill,  is  not 
capable  of  exact  determination  or  statement.  Here  again, 
we  are  forced  to  resort  to  relatives.  Ordinary  care  and 
diligence,  under  the  special  circumstances,  constitutes  the 
measure  of  duty  and  responsibility  of  the  practitioner  in 
the  application  of  his  skill  and  knowledge  in  the  treatment 


23  Leighton  v.  Sargent,  31  N.  H.,  119. 

24  Leighton  v.  Sargent,  31  N.  H.,  119. 


OBLIGATIONS   IMPOSED    BY   LAW.  139 

of  his  patients.  He  must  act  with  the  reasonable  care  and 
diligence  ordinarily  and  reasonably  used  by  ordinary  prac- 
titioners of  the  profession  in  average  localities  similarly 
situated  at  the  time.25 

THE  TEST. — The  test  is,  What  would  an  ordinarily  skill- 
ful, careful  and  prudent  practitioner  have  done  under  the 
circumstances^ 

ORDINARY  CARE. — The  reasonable  and  ordinary  care  which 
is  required  of  practitioners  of  a  profession,  is  such  care  as 
those  in  the  same  general  neighborhood,  in  the  same  gen- 
eral lines  of  practice,  at  the  time,  ordinarily  exercise  in 
like  cases.26 

HIGHEST  CARE. — A  practitioner  is  not  required,  as  a  mat- 
ter of  law,  to  use  the  highest  degree  of  care  of  which  he  is 
capable,  if  the  care  which  he  does  exercise  is  that  degree 
which  is  exercised  generally  by  practitioners  of  usual  and 
ordinary  skill  and  care  in  similar  localities,  under  the  same 
or  similar  circumstances,  provided  his  conduct  is  consist- 
ent with  ordinary  skill,  having  reference  to  the  state  of  the 
science  in  the  locality  at  the  time. 

CARELESSNESS — MISCONDUCT. — Carelessness  is  an  act  of 
omission  and  involves  an  abuse  of  discretion  under  a  defi- 
nite obligation;  misconduct  is  an  act  of  commission  by  vio- 
lating a  definite  law  or  duty.  Misconduct  is  a  forbidden 
act  and  is,  necessarily  indefinite,  depending  upon  the  cir- 
cumstances.27 

CARELESSNESSS  NEVER  EXCUSED  IN  LAW. — That  others  have 
been  similarly  careless  is  no  defense  to  an  action  for  mal- 
practice. The  fact  that  all  men  are  sometimes  careless, 
does  not  excuse  any  man  for  being  careless  at  any  time.28 


25  Ritchie  v.  West,   23   111.,   329,    330;   McNevins  v.   Lowe,   40   111.,   209,    210;    Beck   v. 
German  Klinik,    78   la.,    696. 

26  Carpenter  v.  Walker,   170  Ala.,   650. 

27  Citizens  Ins.  Co.  v.  Marsh,  41  Pa.  St.,  386,  394. 

28  Samuels  v.  Willis,  133  Ky.,  459;  19  A.  C.,  188.      (A  sponge  case.) 


140  MEDICAL   JURISPRUDENCE. 

Judgment. 

Nature  of  Judgment  Required. — GENERALITY  OF  APPLICA- 
TION.— In  the  discharge  of  every  mandate  there  is  involved 
the  exercise  of  more  or  less  judgment.  However  menial 
the  service  may  be,  a  certain  latitude  of  discretion  is  neces- 
sarily incident  to  its  performance.  You  cannot  eliminate 
this  human  element  from  any  conscious  effort.  From  the 
laborer  who  digs  in  the  ditch  to  the  surgeon  who  holds  a 
life  in  his  hands,  the  element  of  judgment  in  the  discharge 
of  his  duties  is  an  essential  part  of  the  undertaking.  In 
employing  a  person  for  any  task,  the  employer  knows  that 
the  exercise  of  that  person's  judgment  will  be  involved  in 
the  performance  of  the  services,  and  it  is  that  person's 
judgment  which  is  being  paid  for.  "We  do  not  expect  om- 
niscience nor  infallibility,  and  the  law  does  not  require  that 
standard.  A  man's  judgment  may  be  good,  bad  or  indif- 
ferent and,  whichever  it  is,  the  employer  engages  that  and 
nothing  more,  and  the  servant  has  discharged  his  whole 
duty  when  he  has  given  his  employer  his  best  judgment.29 

REQUIREMENT  STATED. — In  every  contract  of  service  the 
law  injects  the  stipulation  that  the  servant  must  use  his 
best  judgment  in  the  discharge  of  his  duties. 

LATITUDE  OF  DISCRETION. — In  all  professional  services, 
there  is  a  wide  latitude  for  the  exercise  of  discretion,  and 
the  practitioner  fulfills  his  obligation  in  this  respect  when, 
in  good  faith  in  the  exercise  of  due  skill  and  care,  after  rea- 
sonably informing  himself,  he  determines  the  course  to 
pursue.  The  medical  and  surgical  practitioner  is  contin- 
ually required  to  exercise  his  discretion  as  to  the  course 
of  treatment,  or  method  of  operation  to  be  pursued. 
Herein,  he  owes  his  patient  his  best  judgment  and  nothing 
more.30  Of  course,  as  a  basis  for  the  exercise  of  that  judg- 


29  Gramm  v.  Boener,  56  Ind.,  497. 
so  McKee  t>.  Allen,  94  111.  App.,  147. 


OBLIGATIONS   IMPOSED   BY   LAW.  141 

ment  he  owes  his  patient  the  obligation  carefully  to  diag- 
nose the  case,  and  reasonably  to  inform  himself  of  condi- 
tions and  circumstances. 

No  GUARANTY  THAT  JUDGMENT  IS  CORRECT. — A  physician 

does  not  guarantee  that  his  judgment  is  correct,  nor  that  it 
is  as  good  as  the  judgment  of  some  other  practitioner. 
When  in  the  exercise  of  reasonable  and  ordinary  skill  and 
due  care  he  gives  his  patient  the  benefit  of  the  exercise  of 
his  best  discretion,  he  has  done  all  that  the  law  requires 
and  he  is  not  liable  in  damages,  even  though  his  judgment 
is  wrong  and  his  patient  is  injured  thereby.31  Of  course 
reasonable  information  must  precede  the  exercise  of  good 
judgment.  Good  faith  requires  that  the  practitioner  un- 
derstands before  he  decides.  If  he  makes  a  skillful  and 
careful  investigation,  in  good  faith,  he  is  not  liable  even 
though  his  diagnosis  is  wrong,  and,  on  the  other  hand,  as- 
suming that  his  diagnosis  is  correct  and  that,  in  the  exer- 
cise of  his  best  judgment,  he  arrives  at  a  wrong  conclusion, 
still  he  is  not  liable  for  the  inconvenience  or  damage  which 
his  patient  may  suffer.32 

DIFFERENT  METHODS. — Where,  under  the  usual  practice 
of  the  profession,  different  courses  of  treatment  or  pro- 
cedure may  properly  and  reasonably  be  applied,  and  the 
patient  does  not  limit  the  practitioner  to  any  particular 
treatment  or  procedure,  the  latter  has  a  right  to  use  his 
best  judgment  as  to  the  manner  and  means  of  treatment 
and  procedure,  and  he  will  not  be  liable  in  an  action  for 
malpractice  so  long  as  his  conduct  is  not  inconsistent  with 
ordinary  skill  and  due  care  under  the  circumstances.  If  a 
practitioner  uses  his  best  judgment  in  all  respects  he  is  not 
liable  in  damages  to  his  patient  for  malpractice,  provided 
his  conduct  was  not  inconsistent  with  the  possession  and 


31  Wilkins  v.  Ferrell,  10  Tex.  Civ.  App.,  231.  ' 

32  Patten   v.   Wiggins,    51   Me.,    594;    Williams   v.   Peppleton,    3    Ore.,    139;    Fisher  v. 
Niccolls,  2  111.  App.,  484. 


142  MEDICAL   JURISPRUDENCE. 

use  of  ordinary  skill  and  due  care  under  the  circumstances, 
even  though  some  other  practitioner  would  have  pursued  a 
different  course,  and  the  results  show  that  the  former  was 
mistaken.33 

Presumptions  of  Skill,  Care  and  Judgment. — In  the  ab- 
sence of  evidence  the  law  indulges  no  presumption  of  want 
of  skill,  care  or  good  judgment;  neither  does  it  infer  the 
presence  of  these  qualities.34  It  is  not  enough  to  render  a 
practitioner  liable  to  show  that  he  has  a  less  degree  of  skill 
than  some  other  practitioner  might  have  shown,  or  that  he 
exercised  a  less  degree  of  care  than  he  himself  might  have 
been  able  to  bestow;  or  that  he  made  a  mistake  in  judg- 
ment; nor  is  it  enough  that  he  even  acknowledges  some 
want  of  care  or  some  error  in  judgment :  There  must  have 
been  a  want  of  ordinary  skill  and  care  to  such  a  degree  as 
to  have  led  to  the  bad  results.35  The  manner  in  which  the 
services  were  performed  is  the  true  test  of  their  charac- 
ter.36 In  the  absence  of  proof,  the  courts  presume  that  the 
work  was  skillfully  and  carefully  done  and  that  the  prac- 
titioner used  his  best  judgment,  or  rather,  at  least,  the  bur- 
den is  on  the  patient  to  establish  the  contrary,  and  in  the 
absence  of  any  proof  there  would  be  no  basis  for  a  claim 
for  liability.37 

INFERENCES  FROM  INJURIOUS  RESULTS. — Ordinarily  the 
fact  that  injurious  results  followed  treatment  does  not  jus- 
tify an  inference  of  want  of  skill,  care  or  good  judgment. 
The  consequences  complained  of  may  be  the  result  of  the 
patient's  condition,  and  in  no  respects  due  to  the  conduct 
of  the  practitioner.  Generally  speaking,  the  fact  that  a 
patient  is  suffering  from  some  abnormal  condition  after 
the  services,  or  that  he  received  no  benefit  from  the  treat- 


33  Luka  v.  Lowrie, — Mich., — ;   41  I».  R.  A.,   290. 

34  Davis  v.  Kerr,  239  Pa.  St.,  351. 

35  Rich  v.  Pierpont,  3  Foster  &  F.,  35. 

36  Bute  v.  Potts,  76  Cal.,  304. 

37  State  v.  Housekeeper,  70  Md.,  162. 


OBLIGATIONS   IMPOSED   BY   LAW.  143 

ment,  or  that  the  practitioner  failed  to  accomplish  satis- 
factory results,  does  not  raise  any  presumption  of  want  of 
skill,  care  or  good  judgment.38  Default  in  these  respects 
must  be  established  from  all  the  facts  and  circumstances  in 
the  case.  The  result  of  treatment  is  often  only  a  minor 
consideration. 

That  a  fractured  limb  is  shorter  than  the  other  after  the 
recovery  of  the  patient,  is  not  evidence  that  the  practitioner 
was  negligent,  as  such  condition  might  result  from  the 
nature  of  the  fracture  or  the  condition  of  health  and  age 
of  the  patient.39  The  burden  of  explaining  the  fact  is  on 
the  patient  and  he  must  show  that  the  treatment  of  the  case 
was  the  primary  cause  for  the  shortening. 

However,  leaving  a  tooth  go  down  the  windpipe  of  a  pa- 
tient who  is  under  the  influence  of  an  anesthetic  raises  a 
presumption  of  negligence  on  the  part  of  the  operating 
dentist  and  casts  upon  him  the  burden  of  showing  that  the 
incident  occurred  without  his  fault.40 

Also,  it  has  been  held  that  failure  of  a  physician  to 
discover  a  serious  rupture  of  the  perineum,  after  repeated 
examinations  for  that  purpose,  is  actionable  negligence.41 
In  the  case  cited,  the  condition  must  have  been  such  as  to 
make  the  failure  to  discover  the  ailment  inconsistent  with 
reasonable  skill  or  ordinary  care.  The  jury  may  find  that 
it  is  negligence  for  an  attending  physician  to  fail  to  dis- 
cover and  remove  a  detached  portion  of  the  placenta  after 
a  miscarriage.42 

Agreement  Waiving  These  Requirements. — A  practi- 
tioner cannot  contract  with  his  patient  against  his  responsi- 
bility for  negligence  growing  out  of  his  want  of  skill  or 


38  Friend  v.  Kramer,   236   Pa.   St.,   618. 

39  Piles  v.  Hughes,   10  la.,  579. 

40Keily  f.  Colton,  1  City  Ct.   (N.  Y.),  439;  flee  McGehee  v.  Shiftman,  4  Cal.  App.,  50. 
For  full  discussion  see  chapter  on  Res  Ipsa  Loquitur. 

41  Lewis  v.  Dwinell,  84  Maine,  487. 

42  Moratzky  v.  Wirth,  67  Minn.,  46 ;  See  Langford  v.  Jones,   18  Ore.,  407. 


144  MEDICAL   JURISPRUDENCE. 

care,  or  Ms  failure  to  exercise  his  best  judgment  in  his 
services  to  his  patient,  as  such  an  agreement  is  against 
public  policy  and,  therefore,  void.43 

Agreement  for  Special  Skill. — A  practitioner  may  agree 
to  bring  to  the  aid  of  his  patient  a  higher  degree  of  skill 
and  to  exercise  a  higher  degree  of  care  than  the  law  im- 
poses on  the  relation,  and  he  will  be  required  to  fulfill  his 
special  promise.  If  the  practitioner  defaults,  the  patient 
will  have  a  right  of  action  for  breach  of  contract.  If  the 
patient  relies  on  specific  representations  of  extraordinary 
skill  and  ability  on  the  part  of  the  practitioner,  he  must 
allege  such  facts  in  his  declaration,  because  the  law  does 
not  imply  them  from  the  relation.44 

Specialists. — Where  a  person  holds  himself  out  as  a  spe- 
cialist in  the  treatment  of  a  certain  organ,  anatomical  part, 
physiological  function,  injury  or  disease,  he  is  bound  to 
bring  to  the  aid  of  the  one  employing  him  as  such,  both  in 
diagnosis  and  treatment,  that  degree  of  skill  and  knowledge 
which  is  ordinarily  possessed  by  those  who  devote  special 
study  and  attention  to  that  particular  organ,  part,  func- 
tion, injury  or  disease,  in  the  same  general  locality,  having 
regard  to  the  state  of  scientific  knowledge  at  the  time.45 
Thus,  one  who  undertakes  to  treat  an  eye  as  a  specialist, 
must  have  that  degree  of  care  and  skill  which  is  ordinarily 
possessed  by  physicians  who  devote  special  attention  and 
study  to  the  treatment  of  that  organ.46  The  physician  who 
makes  a  specialty  of  surgery,  the  oculist,  the  aurist,  the 
rhinologist,  must  give  to  his  patient  that  degree  of  knowl- 
edge and  skill  which  is  ordinarily  possessed  by  such  spe- 
cialists in  the  general  locality  at  the  time.47 

Practitioner  Must  Keep  Pace  with  the  Times. — Medical 


43  Hales  v.  Raines,  162  Mo.  App.,  46. 

44  Goodwin  v.  Hersam,  65  Minn.,  233. 

45  Rann.  v.  Twitchell,   82  Vt.,  79 ;  20  L.  R.  A.,  1030. 

46  Feeney  v.  Spalding,  89  Me.,  111. 

4T  Baker  v.  Hancock,  29  Ind.  App.,  456 ;  20  L.  R.  A.,  1030. 


OBLIGATIONS   IMPOSED   BY   LAW.  145 

science  is  moving  forward  with  rapid  strides.  What  is 
proper  practice  today  may  be  questioned  tomorrow,  be 
abandoned  during  the  week,  be  antiquated  before  the  close 
of  the  month  and  become  all  but  criminal  before  the  lapse 
of  the  year. 

Practitioners  must  progress  with  their  profession.  They 
cannot  cling  to  antiquated  and  abandoned  methods,  prac- 
tices, remedies  and  appliances  and  escape  liability  for  in- 
juries resulting  therefrom.  They  should  not  resort  to 
every  new-fangled  theory,  nor  always  test  the  latest  fad, 
but  the  best  generally  approved  improvements  should  be 
resorted  to  when  the  proper  occasion  arises,  having  respect 
to  the  locality  and  time.  What  was  proper  a  few  years 
ago  may  be  malpractice  today.  Eesponsibilities  are  based 
on  present  enlightenment  and  experience.48 

Experimentation. — The  policy  of  the  law  is  very  strict 
against  practitioners  trying  experiments.  In  other  words, 
a  physician  cannot  experiment  with  his  patients  to  their 
injury.49 

Established  Treatment. — Generally  speaking,  where  there 
is  an  established  treatment,  it  must  be  followed  substan- 
tially.50 If  the  ordinary  and  established  practice  of  the 
profession  is  to  treat  an  ailment  in  a  particular  manner,  it 
is  the  practitioner's  duty  substantially  to  follow  such  prac- 
tice, and  if  he  adopts  some  other  mode  which  proves  in- 
jurious, he  is  guilty  of  negligence.  Where  a  particular 
mode  of  treatment,  to  the  exclusion  of  others,  is  upheld  by 
the  consensus  of  opinion  among  the  reasonably  skillful  and 
careful  members  of  the  profession,  and  sustained  by  the 
general  experience  of  practitioners,  it  must  be  substantially 
followed  by  the  practitioner  and,  if  he  sees  fit  to  experiment 


48  McOandless   v.   McWha,    22    Pa.    St.,    261;    Van    Hooser   v.   Berghoff,    90    Mo.,    487; 
Gramm  v.  Boener,   56  Ind.,  497. 

49  Hasse  v.  Knippel,  1  Mich.  N.  P.,  102. 

50  Carpenter  v.  Blake,  60  Barb.,  488. 


146  MEDICAL   JURISPRUDENCE. 

with  other  modes,  he  does  so  at  his  peril.51  The  burden  is 
upon  the  patient,  however,  to  show  that  the  departure  from 
the  established  practice  was  the  cause  of  the  injury.52 

ESTABLISHED  TREATMENT  INAPPLICABLE. — The  rule  does 
not  apply  where,  for  any  reason,  the  established  mode  of 
treatment  cannot  be  adopted,  or  is  impracticable.53 

Gratuitous  Services. — Kesponsibility  is  not  dependent 
upon  nor  related  to  the  size  or  source  of  the  fee.  Where 
the  relation  exists,  the  liability  attaches.  When  a  profes- 
sional man  undertakes  to  render  professional  services  to 
a  patient,  the  law,  from  necessity,  imposes  upon  him  the 
duty  to  exercise  the  skill,  care  and  judgment  heretofore 
explained,  and  default  therein,  resulting  in  damage  to  the 
patient,  constitutes  a  cause  of  action.  Therefore,  the  fact 
that  the  services  were  rendered  gratuitously  or  were  paid 
for  by  a  third  party  is  no  defense  to  an  action  for  malprac- 
tice.54 

Non-Professional  Volunteer. — These  requirements  of 
skill,  care  and  judgment  are  implied  by  law  from  the  rela- 
tion of  practitioner  and  patient,  and  therefore  do  not  apply 
where  the  relation  does  not  exist.  If  a  person  does  not 
profess  to  be  a  physician  or  to  practice  as  such,  and  is 
merely  asked  his  advice  as  a  friend  or  neighbor,  he  does 
not  incur  any  professional  responsibility  in  attempting  to 
give  relief,  and  in  the  absence  of  malice  on  the  part  of  the 
volunteer  the  person  following  his  advice  would  have  to 
bear  the  consequences.  Thus,  the  friend  who,  in  case  of 
neuralgia,  cold,  indigestion  or  other  infirmity,  volunteers 
advice  and  assistance  to  relieve  the  distress,  does  not 
thereby  undertake  to  possess  the  qualifications  of  a  phy- 
sician, and  where  there  is  no  such  implied  representation 


51  Jackson  v.  Burnham,   20  Col.,   532. 

52  Winner  v.  Lathrop,   67  Hun,  511. 

53  Hallam  v.  Means,   82  111.,   379. 

54  Peck  v.   Hutchinson,    88   la.,    320;    Pippin   v.    Sheppard,    11  Price,   400-;    Becker  v. 
Janinski,  15  N.  Y.  Supp.,  675 ;  DuBois  v.  Decker,  130  N.  Y.,  325. 


OBLIGATIONS   IMPOSED   BY   LAW.  147 

the  want  of  such  qualifications  does  not  create  a  liability, 
even  though  injury  results  to  the  recipient  of  the  services 
by  reason  of  default  in  this  respect.55 

Where  the  sufferer,  however,  in  good  faith,  understands 
that  the  party  rendering  the  assistance  is  a  physician  and 
accepts  the  services  in  the  belief  that  he  is  a  member  of 
the  profession,  and  where  the  circumstances  of  the  case 
and  the  conduct  of  the  party  are  such  as  to  justify  him  in 
entertaining  such  belief,  the  party  rendering  the  assistance 
may  be  chargeable  with  the  responsibility,  as  to  skill,  care 
and  judgment,  of  a  member  of  the  profession  and  be  re- 
quired to  respond  in  damages  for  any  injury  resulting  by 
reason  of  his  lack  of  such  qualifications,  or  application.56 

Unlicensed  Practitioner. — The  requirements  of  law  as  to 
skill,  care  and  judgment  apply  to  unlicensed  as  well  as  to 
licensed  practitioners  and  the  same  tests  should  be  applied. 
No  greater  obligations  in  this  respect  rest  upon  the  party 
by  reason  of  the  fact  that  he  does  not  have  a  license ;  neither 
are  they  less  even  though  the  patient  knows  the  want  of 
sanction.57  But,  in  an  action  for  malpractice  against  an 
unlicensed  physician,  the  burden  of  showing  ordinary  skill 
is  on  the  physician.58 


55  McNevins  v.  Lowe,  40  111.  209;  Higgins  t>.  McCabe,  120  Mass.,  13;  Shields  v.  Black- 
burn, 1  H.  Bl.,   158;   Beardslee  v.  Richardson,   11  Wend.,  25. 

56  Matthei  v.  Wooley,  69  111.  App.,  654. 

57  Nelson   v.   Harrington,    72   Wis.,    591. 

58  Cf.  Nations  v.  Lumber  Co., — La. — ;  48  L.  R.  A.,   531 


CHAPTER  XIII. 

CIVIL  MALPRACTICE. 

Elements  of  Breach. 

Definition. — Civil  malpractice  is  improper  treatment  of  a 
patient  by  a  practitioner,  whereby  the  patient  is  injured. 
It  means  default  in  some  one  or  more  of  the  legal  require- 
ments of  skill,  care  and  judgment,  as  discussed  in  the  pre- 
ceding chapter.  The  fault  may  be  an  act  of  either  omis- 
sion or  commission,  and  may  result  from  ignorance,  care- 
lessness or  poor  judgment.  Besides,  there  is  the  case  where 
the  patient  is  operated  upon  without  his  consent  or  over 
his  objection  and,  though  the  operation  may  be  skillfully 
performed,  the  act  is  in  the  nature  of  a  trespass  and  con- 
stitutes an  assault  for  which  an  action  will  lie.  This  action 
is  in  the  nature  of  an  action  for  malpractice. 

Essentials  of  Liability. — In  order  to  maintain  an  action 
for  malpractice  against  a  physician,  a  patient  must  prove 
by  competent  evidence, 

(a)  Improper  treatment  and 

(b)  Injury  from  such  treatment. 

Improper  treatment  without  injury,  or  injury  not  shown 
to  be  the  result  of  improper  treatment,  is  not  enough  to 
make  a  case  of  malpractice  in  law.  Unless  both  exist  in 
the  relation  of  cause  and  effect,  and  not  as  a  mere  coinci- 
dence, the  patient  has  no  reason  for  complaint,  but,  if,  be- 
cause of  default  shown,  the  service  did  the  patient  no  good, 
the  practitioner  would  not  be  entitled  to  receive  any  fee,  in 
the  absence  of  a  special  agreement  for  a  fee  in  any  event. 
Malpractice  is  a  branch  of  the  general  law  of  negligence. 

148 


ELEMENTS   OF    BREACH.  149 

Negligence. 

Definition. — Negligence  is  the  absence  of  care  according 
to  circumstances.1  "  Negligence  is  the  failure  to  observe, 
for  the  protection  of  the  interests  of  another  person,  that 
degree  of  care,  precaution  and  vigilance  which  the  circum- 
stances justly  demand,  whereby  such  other  person  suffers 
injury. ' ' 2  The  physician  who  fails  to  do  what  a  reason- 
ably prudent  practitioner  would  have  done  under  the  cir- 
cumstances, or  does  what  a  reasonably  prudent  practitioner 
would  not  have  done  under  the  circumstances,  whereby  the 
patient  is  injured,  is  considered  guilty  of  negligence  and  is 
liable  for  the  damages  sustained  by  his  patient.3  Negli- 
gence may  be  the  result  of  either  ignorance,  carelessness  or 
poor  judgment,  and  in  either  event,  the  practitioner  will  be 
liable  to  the  patient  for  the  consequent  damages ;  but  if  poor 
judgment  is  relied  upon  as  the  basis  of  liability  the  error 
must  be  so  gross  as  to  establish  either  ignorance  or  care- 
lessness, or  that  the  party  did  not,  in  good  faith,  use  his 
own  best  judgment. 

Intent. — Intention  to  injure  is  not  an  essential  element 
in  an  action  for  malpractice;  in  fact,  the  term  negligence 
excludes  the  idea  of  intent.4 

Good  Faith. — Although  the  practitioner  acted  in  the  ut- 
most good  faith,  believing  his  treatment  proper  and  safe, 
still,  if  he  was  not  sufficiently  qualified  under  the  law,  or  if 
he  omitted  some  duty  or  performed  some  negligent  act, 
whereby  his  patient  was  injured,  he  will  be  liable  for  the 
consequences. 

Accident. 

Definition. — The  Century  Dictionary  defines  accident  as 

1  Turnpike  Co.  v.  R.  Co.,  54  Pa.  St.,  219,  225;  Barker  v.  Essex,  27  Vt.,  62;  C.  B     & 
Q.  R.  Co.  v.  Johnson,   103  111.,  512,  518  et  seq. 

2  Cooley  on  Torts,   630. 

3  Alderson,  B.,  in  Blythe  v.  Birmingham  Water  Works  Co.,  11  Exch.,  784. 

4  Bindbental  v.  Street  Rd.  Co.,  43  Mo.  App.,  463. 


150  MEDICAL,   JURISPRUDENCE. 

"anything  that  happens  or  begins  to  be  without  design,  or 
as  an  unforeseen  effect;  that  which  falls  out  by  chance;  a 
fortuitous  event  or  circumstance." 

Where  an  event  takes  place,  the  real  cause  of  which  can- 
not be  traced  or  is,  at  least,  not  apparent,  it  ordinarily  be- 
longs to  that  class  of  occurrences  which  are  designated  as 
purely  accidental.5 

Even  though  accident  and  negligence  be  not  opposites, 
they  cannot  be  regarded  as  identical,  without  confounding 
cause  and  effect.  Accident  and  its  synonyms,  casualty  and 
misfortune,  may  proceed  or  result  from  negligence  or  other 
causes  known  or  unknown.6 

Liability  in  Case  of  Accident. — For  injuries  resulting 
from  mere  accident,  no  liability  attaches.  For  a  purely 
accidental  occurrence  causing  damage,  without  the  fault  of 
the  person  to  whom  it  is  attributed,  no  action  will  lie;  for, 
though  there  is  damage,  the  thing  amiss, — the  injuria — is 
wanting.7  A  patient  may  be  injured  under  circumstances 
which,  in  law,  are  considered  purely  accidental.  In  such 
cases  the  practitioner  is  not  liable  for  the  damages  sustained 
by  the  patient  from  the  injury. 

Accident  and  Negligence. — The  term  accident,  as  above 
used,  necessarily  excludes  the  idea  of  negligence  on  the 
part  of  the  practitioner.  Merely  calling  an  act,  which  re- 
sulted in  injury  to  another,  an  accident  will  not  relieve  the 
party  of  responsibility  for  his  negligence.  The  untoward 
result  must  have  been  what,  in  law,  is  recognized  as  an 
accident.  Where  the  negligence  of  the  operator  contributed 
to  the  untoward  result,  it  was  not,  as  to  him,  an  accident 
within  the  meaning  of  the  law  of  negligence.  There  must 
be  an  entire  absence  of  negligence  on  the  part  of  the  party 
sought  to  be  charged.8  An  occurrence  which,  to  the  pa- 

6  Wabash,  etc.,  B.  Co.  v.  Rocke,  112  Ind.,  404. 

6  McCarthy  v.  N.  Y.,  etc.,  R.  Co.,  30  Pa.  St.,  347,  351. 

^  Cooley  on  Torts,  80. 

8  Button  v.   Bonnett,    114   Ind.,    243. 


ELEMENTS   OF    BREACH.  151 

tient,  may  properly  be  spoken  of  as  an  accident,  is  not  neces- 
sarily an  accident  from  the  viewpoint  of  the  responsibility 
of  the  practitioner.  If  the  latter  was  at  fault,  the  occur- 
rence as  to  him  was  not  an  accident.  Where  an  accident 
combined  with  the  negligence  of  the  practitioner  to  produce 
the  injury  to  the  patient,  and  without  which  negligence  the 
injury  would  not  have  happened,  the  former  is  liable  for  the 
entire  damage.9 

Contributory  Negligence. 

Definition. — Contributory  negligence  is  such  an  act  or 
omission  on  the  part  of  the  patient,  amounting  to  want  of 
ordinary  care,  as,  concurring  with  the  negligent  act  or 
omission  of  the  practitioner,  is  the  proximate  cause  of  the 
injury.10 

Effect  of  Contributory  Negligence. — Where  the  negli- 
gence of  the  person  injured  primarily  contributed  to  the  in- 
jury, by  direct  association  with  the  cause  of  action,  he  can- 
not recover  damages.11  Both  parties  being  in  fault  with 
reference  to  the  cause  of  the  injury  complained  of,  the  law 
leaves  the  burden  rest  where  it  fell. 

Reasons  for  the  Rule. — Though  the  action  of  malpractice 
is  in  the  nature  of  an  action  for  a  breach  of  the  implied 
terms  of  a  contract,  the  general  rules  of  law  governing  con- 
tributory negligence  are  applied  where  both  are  contempo- 
raneously and  concurrently  at  fault,  because  of  the  difficulty 
which  would  usually  be  encountered  in  an  attempt  to  appor- 
tion the  injury  between  them.  In  this  respect,  however, 
there  is  practically  no  difference  between  actions  for  mal- 
practice and  other  actions  in  tort,  because,  as  a  matter  of 
fact,  all  actions  sounding  in  tort  have  their  origin  in  and 


9  Rookfalls  v.  Wells,  169  111.,  224;  Weick  v.  Lander,  75  111.,  93;  I.  C.  R.  Co.  v.  Siler, 
229  111.,  390;  Joliet  v.  Varley,  35  111.,  58;  Carterville  v.  Cooke,   129  111.,   152;  Joliet  v. 
Shufeldt,   144  111.,  403. 

10  29  Cyc.,  505. 

U  Littlejohn  v.  Arbogast,  95  111.  App.,  605 ;  Haering  v.  Spicer,  92  111.,  App.,  449. 


152  MEDICAL    JURISPRUDENCE. 

are  based  upon  a  breach  of  some  obligation  imposed  by  law. 

Where  the  injury  resulting  from  the  negligence  of  the 
patient  can  be  distinguished  from  the  results  of  the  phy- 
sician's negligence,  the  reason  for  the  rule  does  not  apply, 
and  the  patient  may  maintain  his  action  and,  in  that  event, 
the  negligence  of  the  patient  can  be  used  only  in  mitigation 
of  damages,  and  not  to  defeat  the  patient's  right  of  action.12 
And  for  the  same  reason  a  physician  will  be  liable  for  the 
damage  occasioned  by  his  improper  treatment  although  a 
part  of  the  patient's  sufferings  proceeded  from  other 
causes.13  Thus,  where  a  physician  treated  a  broken  limb 
in  an  improper  and  careless  manner,  necessarily  resulting 
in  permanent  injury  to  the  patient,  the  fact  that  the  con- 
tributory negligence  of  the  latter  increased  the  injuries, 
does  not  bar  the  patient's  right  of  action,  but  affects  only 
the  measure  of  damages.14 

Relation  Between  the  Physician's  and  the  Patient's  Neg- 
ligence and  the  Patient's  Injury. — The  causal  relation  be- 
tween a  physician's  conduct  and  his  patient's  injury,  in 
connection  with  operation  and  course  of  treatment,  and  the 
conduct  of  the  patient,  presents  itself  in  several  different 
aspects  involving  different  phases  of  liability : 

FIRST:  The  patient  alone  may  be  at  fault,  in  which 
event  the  practitioner  will  not  be  liable  for  the  damages 
sustained.  Under  this  condition  of  facts,  the  want  of  re- 
sponsibility is  the  same,  without  regard  to  the  time  of  the 
patient's  negligence,  with  reference  to  the  time  of  the  oper- 
ation or  the  course  of  treatment;  that  is,  whether  (a)  before, 
or  (b)  during,  or  (c)  after  the  services. 

SECOND:  The  practitioner  alone  may  be  at  fault,  in 
which  event  he  will  be  liable  to  the  patient  for  the  entire 


12  Hibbard  v.  Thompson,  109  Mass.,  286. 

13  Gates  v.  Fleischer,  67  Wis.,  504. 

14  Wilmot  v.  Howard,  39  Vt.,  447. 


ELEMENTS   OF   BREACH.  153 

damage  sustained  by  the  latter  by  reason  of  such  negli- 
gence. 

THIRD:  Both  patient  and  practitioner  may  be  at  fault, 
in  which  event  the  question  of  liability  is  affected  by  the 
fact  as  to  whether  the  negligence  of  the  patient  was  (a) 
contemporaneous  or  concurrent,  or  (b)  in  order  of  sequence, 
with  the  negligence  of  the  practitioner. 

(a)  When  the  negligence  of  both  operates  contemporane- 
ously, concurrently  and  jointly  to  produce  the  injury,  the 
patient  cannot  recover  but  must  bear  the  entire  loss  alone. 

(b)  When  the  negligence  of  both  operates  successively 
to  produce  the  injury  to  the  patient,  the  practitioner  will 
be  liable  for  all  damages  or  aggravation  of  damages,  natu- 
rally resulting  from  his  own  negligence,  but  he  will  not  be 
responsible  for  the  injury  flowing  from  the  patient's  negli- 
gence, nor  for  the  aggravation  of  the  injury  occasioned  by 
the  subsequent  negligence  of  the  patient.15    A  practitioner 
is  liable  for  the  injurious  results  of  his  own  negligence,  al- 
though the  subsequent  acts  of  the  patient,  or  a  nurse,  or 
others  over  whom  the  practitioner  had  no  control,  may  have 
aggravated  the  injury.16     If  the  improper  treatment  makes 
the  injury  unavoidable  and  inevitable,  an  action  against  the 
practitioner  will  not  be  defeated  by  the  fact  that  subsequent 
mismanagement,  or  negligence  of  the  patient,   or  others 
may  have  aggravated  the  trouble.17    A  practitioner  is  liable 
to  his  patient  for  the  damages  resulting  from  his  own  negli- 
gence, even  though  the  injuries  are  aggravated  by  reason 
of  the  subsequent  or  prior  negligence  of  the  patient,  or 
others.18 


15  Sauers  v.  Smits,  45  Wash.,   559;   17  L.  B.  A.,   1242;   Sanderson  v.  Holland,   39  Mo. 
App.,  233;  Wilmot  v.  Howard,   39  Vt.,  447;  Du  Bois  v.  Decker,   130  N.  Y.,  325;   Geisel- 
man  v.  Scott,  25  O.  St.,  86. 

16  Carpenter  v.  Blake,  75  N.  Y.,  12;  Sanderson  v.  Holland,  39  Mo.  App.,  233;  Hathorn 
v.  Richmond,  48  Vt.,  557. 

17  Hibbard  v.  Thompson,    109   Mass.,   286;   Wilmot  v.  Howard,   39  Vt.,   449. 

18  Wilmot  v.   Howard,   39   Vt.,   449;    Hathorn   v.   Richmond,   48   Vt.,   557;    Murdock  v. 
Walker,  43  111.  App.,  590;  Sanderson  v.  Holland,  39  Mo.  App.,  223;  Sauers  v.  Smith,  49 
Wash.,  557;  Morris  v.  Despain,  104  111.  App.,  452;  17  L.  R.  A.,  1242. 


154  MEDICAL    JURISPRUDENCE. 

RECOGNITION  OF  THE  CLASSIFICATION. — There  is  consider- 
able confusion  among  the  decisions  with  reference  to  this 
subject,  and  some  decisions  have  entirely  lost  sight  of  the 
foregoing  relations,  but  wherever  the  attention  of  the  court 
has  been  directed  to  the  subject,  these  distinctions  have 
been  recognized. 

TEMPERAMENT. — That  the  natural  temperament  or  phys- 
ical weakness  of  a  patient  contributed  to  produce  the  injury 
primarily  caused  by  the  malpractice  of  the  physician,  is  no 
defense  to  an  action  against  the  physician  for  such  injury, 
but  the  same  may  be  shown  in  mitigation  of  damages.19 

FAILURE  TO  OBEY  INSTRUCTIONS. — It  is  the  duty  of  the  pa- 
tient to  obey  any  reasonable  instructions  by  his  physician. 
Failure  of  a  patient  to  observe  such  reasonable  instructions 
and  requirements  of  his  physician  may  be  negligence.20 
Thus  where  a  patient  fails  to  return  to  the  office  for  further 
treatment,  as  directed,  whereby  he  suffers  injury,  though 
the  treatment  was  proper  and  skillful,  his  trouble  is  at- 
tributed to  his  own  carelessness,  and  he  cannot  recover 
from  the  practitioner.21  The  refusal  of  the  patient  to  em- 
ploy an  assistant  for  the  practitioner,  when  the  same  is 
necessary  and  recommended  by  the  practitioner,  and  the 
patient  is  injured  by  reason  of  such  want  of  assistance, 
such  conduct  of  the  patient  is  negligence  on  his  part,  enter- 
ing into  the  cause  of  action  itself,  and  will  defeat  his  right 
of  recovery  against  the  physician,  unless  the  conduct  of  the 
practitioner,  under  the  circumstances,  was  such  as  to  be 
inconsistent  with  ordinary  skill,  due  care  and  good  judg- 
ment.22 

Independent  Services. — If  two  or  more  practitioners, 
simultaneously  or  successively  perform  independent  serv- 


19  Mullen  v.  Flanders,   73  Vt.,   95. 

20Whitesell  v.  Hill,  106  N.  W.,  894;  Haering  v.  Spicer,  92  111.  App.,  449. 

21  Dashiell  v.  Griffith,  84  Md.,  363;  Jones  v.  Angel,  95  Ind.,  376;   17  L.  R.  A.,   1243. 

22  Haering  v.  Spicer,  92  111.  App.,  449. 


ELEMENTS   OP    BREACH.  155 

ices  for  a  patient,  neither  is  liable  for  the  independent  mal- 
practice of  the  other.23 

One  practitioner  is  not  liable  for  an  injury  inflicted  by 
another,  if  not  partners,  unless  they  acted  in  concert  or  co- 
operation. Where  their  acts  are  entirely  independent, 
separate  and  distinct  as  to  aid,  concert,  co-operation  and 
advice,  there  can  be  no  joint  liability  and  each  will  be  liable 
only  to  the  extent  of  his  own  wrong.24 

Nurse's  Negligence. — The  practitioner  is  not  responsible 
for  the  consequences  of  the  ignorance,  carelessness,  or  bad 
judgment  of  nurses  over  whom  he  has  no  control.25  But 
where  he  selects  the  nurse  and  exercises  control  over  her 
actions,  so  that  she  may  be  said  to  represent  him,  or  where 
the  physician  is  careless  in  observing  her  conduct,  he  may 
be  liable  for  injuries  resulting  from  her  negligence.26 

Negligence  of  Druggist. — The  fact  that  the  negligence  of 
the  druggist  concurred  with  that  of  the  physician  in  produc- 
ing the  death  of  the  patient  cannot  be  set  up  as  a  defense 
by  the  physician  in  a  suit  against  him  for  malpractice  in 
causing  the  death.27 

Negligence  of  Assistant  or  Apprentice. — The  attending 
physician  is  responsible  to  his  patient  for  the  want  of  skill, 
care  or  good  judgment  of  his  assistant  or  apprentice,  whom 
he  puts  in  charge  or  permits  to  assist.28 

The  assistant  is  also  personally  liable.29 

Partners. — General  partners  in  the  actual  practice  of  the 
profession  are  liable  for  the  independent  malpractice  of 
either.30 


23  Foster  v.  Wadsworth  Howland  Company,   168  111.,  514. 

24  Teazel  v.  Alexander,   58  111.,  254,  262;   Barnes  v.  Means,   82  111.,   379. 

25  Sanderson  v.  Holland,   39  Mo.  App.,  233 ;   Baker  v.  Wentworth,   155  Mass.,   338. 

26  Stanley  v.   Schumpert,    117   La.,   255;    6  L.   B.   A.,   306. 

27  Murdock  v.  Walker,  43  111.  App.,  590. 

28  Hancke  v.  Hooper,  7  C.  &  P.,  81 ;  Chicago  B.  Co.  v.  Flexman,  103  111.,  546 

29  Fish  v.  Walker,  7  Ohio  N.  P.,  472;  Beed  v.  Patterson,  91  111.,  288,  297. 

30  Hyrne  t).  Erwin,  25  S.  C.,  226 ;  Haase  v.  Morton,  138  la.,  205 ;  Whittaker  v.  Col- 
lins, 34  Minn.,  299;  Hess  v.  Lowrey,  122  Ind.,  225. 


156  MEDICAL    JURISPKUDENCE. 

Negligence  of  Substitute. — The  physician  in  charge  who, 
leaving  town  or  from  sickness,  puts  another  physician  in 
charge,  would  not  under  the  ordinary  practice,  be  liable  for 
the  malpractice  of  such  substitute.31  In  recommending 
such  substitutes,  he  owes  his  patient  only  ordinary  care  in 
the  selection,  and  he  will  not  be  liable  for  the  independent 
malpractice  of  the  physician  whom  he  thus  leaves  in  charge 
of  the  case ;  unless  they  are  partners,  the  patient  must  look 
to  the  one  in  default  for  the  recovery  of  any  damage  he  sus- 
tains by  reason  of  malpractice.  However,  wherever  possi- 
ble, the  patient  should  be  informed  of  the  contemplated 
substitution  and  his  consent  obtained,  otherwise  the  attend- 
ing physician  might  be  liable  for  the  negligence,  if  any,  of 
the  substitute,  in  delaying  to  make  his  first  visit,  or  in  fail- 
ing to  assume  charge  of  the  case.32 

Practitioner  Not  A  Guarantor  of  Beneficial  Results. — A 
practitioner  cannot  be  regarded  as  an  insurer  of  a  success- 
ful result  from  his  treatment,  and  to  base  a  liability  on 
failure  alone  would  be  to  make  him  a  guarantor.33 

Intoxication. — Evidence  that  the  practitioner  was  intoxi- 
cated at  the  time  of  rendering  the  services  alleged  to  be 
improper,  is  admissible  as  a  part  of  the  res  gesta?4 

Physician  Engaged  in  Other  Avocations. — It  has  been 
held  that  in  an  action  for  malpractice,  the  patient  may  show 
that  the  practitioner  was  devoting  time  and  attention  to 
some  other  avocation,  as  such  fact  was  considered  as  hav- 
ing a  bearing  upon  the  question  of  his  skill  and  care.35 

Arbitrary  Refusal  to  Take  Case. — Since  a  professional 
man  is  not  required  to  render  professional  services  to  every- 


31  Keller  v.  Lewis,  65  Ark.,  578;   Hitchcock  v.  Burgett,   38  Mich.,  501;   Myers  v.  Hoi- 
born,  58  N.  J.  L.,   193. 

32  Jones  v.  Angel,  95  Ind.,   376. 

33  Quinn  v.  Donovan,  85  111.,  194,  195 ;  McKee  v.  Allen,  94  111.  App.,   147 ;  Yunker  v. 
Marshall,  65  HI.  App.,  667. 

34  Merrill  v.  Pepperdine,  9  Ind.  App.,  416. 

85  Hess  v,  Lowrey,   122  Ind.,  225 ;  Mayo  v.  Wright,  63  Mich.,  32. 


ELEMENTS   OF   BREACH.  157 

one,  he  may  arbitrarily  refuse  to  undertake  the  treatment 
of  a  case  and,  in  such  event,  he  will  not  be  liable  for  mal- 
practice whatever  may  be  the  consequences  to  the  appli- 
cant.36 The  case  last  cited  was  a  suit  in  malpractice  under 
a  statute  based  upon  Lord  Campbell's  Act,  giving  a  right 
of  action  for  wrongfully  causing  the  death  of  a  person. 
Suit  was  brought  by  the  administrator  of  a  deceased  person 
against  a  physician  charging  him  with  wrongfully  causing 
the  death  of  the  intestate. 

STATEMENT  OF  FACTS. — The  defendant  was  a  licensed 
physician  who  was,  and  for  a  number  of  years  had  been, 
practicing  medicine  in  the  locality,  and  who  held  himself 
out  to  the  public  as  a  general  practitioner  in  that  profes- 
sion. He  had  previously  been  the  family  physician  of  the 
deceased.  It  appears  that  the  decedent  became  seriously 
ill  and  sent  for  the  defendant  by  a  messenger  who  informed 
the  defendant  of  the  extreme  sickness  of  the  decedent,  ten- 
dered him  his  usual  fee  for  services  and  stated  to  him  that 
no  other  physician  was  procurable  at  the  time  and  that 
decedent  was  relying  upon  him  for  professional  attention 
and  services.  In  fact,  it  was  conceded  that  no  other  phy- 
sician was  procurable  at  the  time  and  that  decedent  did 
rely  upon  the  defendant  for  professional  assistance  and 
relief  in  the  emergency.  Without  any  reason  whatever  the 
defendant  refused  to  accept  the  call  or  render  aid  to  the 
decedent.  No  other  patients  were  requiring  his  immediate 
attention  and  he  could  have  responded  to  the  call  without 
inconvenience.  Death  ensued  without  the  fault  of  the  dece- 
dent. 

GEAVAMEN  OF  THE  COMPLAINT. — In  the  complaint  the  death 
was  alleged  to  have  been  caused  solely  from  the  act  of  the 
defendant  in  refusing  to  accept  and  respond  to  the  call, — a 
difficult  allegation  to  prove.  It  appears  to  have  been  con- 


36  Hurley  v.  Eddingfield,   156  Ind.,  416. 


158  MEDICAL   JURISPRUDENCE. 

ceded  by  the  plaintiff  that  there  is  no  common  law  liability 
on  the  part  of  the  physician  to  render  professional  services 
to  all  who  apply  and,  therefore,  this  question  was  not  di- 
rectly before  the  court. 

Statutes  Do  Not  Require  Licentiates  to  Practice. — The 
real  contention  of  the  plaintiff  was  that  the  statute  requir- 
ing parties  who  desire  to  practice  medicine  to  procure  a 
license  implied  that  obligation.  The  statute  in  force  at  the 
time,  provided  for  a  Board  of  Examiners,  standard  of 
qualification,  examination  of  applicants  and  license  to  those 
found  qualified,  and  prescribed  p/enalties  for  practicing 
without  a  license.  The  court  held  that  the  statute  is  a  pre- 
ventative,  not  a  compulsive,  measure;  that  in  obtaining 
permission  from  the  State  to  practice  medicine,  the  licensee 
does  not  engage  that  he  will  practice  at  all,  nor  does  he 
promise  to  render  the  services  on  any  other  terms  than  he 
may  choose  to  accept  or  adopt  in  each  particular  case,  and 
that  by  the  fact  of  issuing  a  license  the  State  does  not  re- 
quire that  the  licensee  shall  in  fact  practice  the  profession, 
neither  does  it  stipulate  that  he  must  serve  all  who  need 
him.  A  license  is  a  privilege,  not  an  obligation. 

Civil  Rights  Acts. — PURPOSES. — The  Civil  Eights  Acts  of 
the  various  States  are  intended  for  the  protection  of  all 
citizens  in  their  civil  and  legal  rights,  their  general  purport 
being  to  entitle  all  persons  within  the  jurisdiction  of  the 
State,  regardless  of  color  or  race,  to  the  full  and  equal  en- 
joyment of  all  the  accommodations,  advantages,  facilities, 
conveniences  and  privileges  of  inns,  restaurants,  eating 
houses,  barber  shops,  public  conveyances  on  land  or  water, 
theatres,  and  all  other  places  of  public  accommodation  and 
amusement,  subject  only  to  the  conditions  and  limitations 
established  by  law,  and  applicable  alike  to  all  citizens,  irre- 
spective of  race,  color  or  previous  condition  of  servitude.37 


37  Baylies  v.  Curry,  128  HI.,  287. 


ELEMENTS   OP   BREACH.  159 

APPLICATION. — The  business  to  which  these  statutes  apply 
must  be  of  a  public  character;  the  statutes  do  not  attempt 
to  control  the  conduct  of  the  citizen  in  his  private  matters. 
The  statutes  do  not  attempt  to  confer  equality  of  social 
rights  or  privileges  or  enforce  social  intercourse.  The  only 
effect  of  the  13th  and  14th  amendments  to  the  Federal  Con- 
stitution, and  of  the  statutes  passed  in  pursuance  thereof 
by  Congress  and  the  several  States,  is  to  place  all  citizens 
on  an  equality  before  tine  law.38 

PHYSICIANS. — These  statutes  and  amendments  do  not  re- 
quire a  practitioner  to  undertake  the  relation  of  physician 
and  patient  with  a  party,  regardless  of  race,  color  or  previ- 
ous condition  of  servitude.  They  do  not  attempt  to  abridge 
his  right  to  determine  with  whom  he  will  contract  and  for 
whom  he  will  render  services.  While  he  may  hold  himself 
out  as  ready  to  accept  as  patients  all  persons  presenting 
themselves  for  that  purpose  who  need  his  services,  still  his 
work,  being  professional  in  character  and  having  a  large 
personal  equation  is  not  sufficiently  public  in  its  nature  to 
bring  it  within  the  provisions  of  these  statutes. 


38  Ganaway  v.  Salt  Lake  Dramatic  Asso.,  17  Utah,  37;  Civil  Bights  Act,  1  Hughes 
(U.  S.),  541;  Coger  v.  N.  W  Union  Packet  Co.,  37  la.,  145;  People  v.  Washington,  36 
Cal.,  658. 


CHAPTER  XIV. 
CIVIL  MALPRACTICE. 
Enforcement  of  Liability. 

Proof  Necessary  to  Establish  Malpractice. — Since  injuri- 
ous consequences,  or  failure  to  cure  or  relieve,  ordinarily 
do  not  establish  either  want  of  skill,  default  in  care  or  bad 
judgment,  it  follows  that  proof  of  injurious  results  or  of 
failure  to  cure  or  relieve,  is  not  sufficient  to  fasten  liability 
upon  the  professional  man.  The  mere  failure  to  effect  a 
cure  or  afford  relief,  raises  no  presumption  of  either  igno- 
rance, negligence  or  poor  judgment.1  The  fact  that  the 
patient  grew  worse  under  the  treatment,  and  improved  when 
the  services  were  dispensed  with,  is  not  of  itself  sufficient 
to  establish  malpractice,  as  such  facts  may  have  been  mere 
coincidences.2 

Anesthetic,  Refusal  to  Give. — Failure  or  refusal  to  ad- 
minister an  anesthetic  is  not  ground  for  action  for  mal- 
practice.3 

Mistake  in  Diagnosis. — A  mere  mistake  in  diagnosis,  not 
accompanied  by  improper  treatment  for  the  real  trouble, 
will  not  render  the  practitioner  liable.4 

Generally  speaking,  liability  for  malpractice  attaches  by 
reason  of  improper  treatment  rather  than  from  any  mis- 
taken diagnosis.  The  patient  is  not  materially  concerned 
in  what  the  practitioner  thinks  his  trouble  to  be,  except  as 
his  conclusion  takes  concrete  form  by  treatment  for  the 


1  Tifft  v.  Wilcox,  6  Kans.,  46. 

2Wurdenmann  v.  Barnes,   72  Wis.,  206;  Ely  v.  Wilbur,  49  N.  J.  L.,  685. 

3  Dye  v.  Corbin,   59  W.  Va.,  266. 

4  Red  Cross  v.  Green,   126  111.  App.,   214. 

160 


ENFORCEMENT   OF   LIABILITY.  161 

supposed  malady.5  A  wrong  diagnosis,  not  followed  by 
improper  treatment  and  injury  to  the  patient,  is  not  suffi- 
cient to  predicate  an  action  for  malpractice.6 

PURPOSE  OF  THE  DIAGNOSIS,  BASIS  OF  LIABILITY. — Where 
the  sole  purpose  of  the  employment  is  the  diagnosis  and 
report  of  the  same,  negligence  or  bad  faith  in  making  the 
examination,  resulting  in  a  wrong  conclusion  and  erroneous 
report,  and  consequent  damages  to  the  patient,  constitutes 
a  cause  of  action.7 

ILLUSTRATION. — In  the  case  last  cited  a  young  man  was 
engaged  to  be  married  but  the  father  of  the  girl  refused  his 
consent  because  of  rumors  that  the  fellow  was  afflicted  with 
a  venereal  disease.  He  denied  the  charge  and  agreed  with 
the  father  to  submit  to  an  examination  by  a  physician  se- 
lected by  the  father  at  the  latter 's  expense.  The  examina- 
tion was  made  and  the  physician  erroneously  reported  that 
the  fellow  had  such  a  disease.  In  consequence,  the  engage- 
ment was  broken  off  and  the  fellow  brought  various  suits 
for  conspiracy,  slander  and  malpractice  against  the  father, 
the  physician  and  others.  On  the  trial  the  suits  were  con- 
solidated. It  was  found  that  the  young  man  was  not  dis- 
eased; that  the  father  and  physician  acted  in  good  faith 
and  that  there  was  no  conspiracy.  There  was  technical  de- 
fect in  the  pleadings  in  the  slander  suits  and,  therefore, 
liability  on  that  score  was  not  considered.  In  the  suit  for 
negligence  or  malpractice  against  the  physician,  the  trial 
court  instructed  the  jury  to  find  a  verdict  in  favor  of  the 
defendant,  to  which  the  plaintiff  excepted  and,  on  appeal, 
the  supreme  court  said : 

"The  verdict  in  the  action  for  negligence  must  be  set 
aside.  The  evidence  tended  to  show  that  the  defendant  was 
employed  by  Morrill  (the  father).  Having  undertaken  for 


5  Grainger  v.  Still,   187  Mo.,   197. 

6  Red  Cross  v.  Green,  126  111.  App.,  214;  Tomer  v.  Aiken,  126  la.,  114. 

7  Harriott  v.  Plimpton,   166  Mass.,   585. 


162  MEDICAL    JUKISPKUDENCE. 

compensation,  to  be  paid  by  another,  to  examine  the  plain- 
tiff, and  to  report  whether  he  was  diseased,  the  defendant 
was  bound  to  have  the  9rdinary  skill  and  learning  of  a  phy- 
sician, and  to  exercise  ordinary  diligence  and  care;  and  if 
he  failed,  and  the  plaintiff  was  injured  because  of  his  want 
of  such  skill  and  learning  or  his  want  of  such  care,  the  de- 
fendant was  answerable  to  him  in  damages.  ...  In  our 
opinion,  the  fact  that  the  purpose  of  the  examination  was 
information,  and  not  medical  treatment,  is  immaterial ;  and 
the  breaking  of  the  plaintiff's  marriage  engagement,  in 
consequence  of  the  wrong  diagnosis,  was  not  too  remote  a 
damage  to  sustain  the  action.  Upon  the  evidence,  it  was 
for  the  jury  to  say  whether  the  defendant  used  ordinary 
care,  learning  and  diligence. ' ' 8 

INQUISITION  OF  SANITY. — In  inquisitions  of  sanity,  the 
physician  who  examines  the  respondent  and  testifies  in  the 
case,  is  liable  to  the  respondent  for  any  damages  he  may 
sustain  by  reason  of  a  mistake  of  the  physician  in  his  con- 
clusion, if  the  mistake  resulted  from  carelessness,  either  in 
diagnosis  or  examination  of  surrounding  facts,  the  exercise 
of  bad  judgment,  or  the  want  of  ordinary  skill  in  the  prem- 
ises. Even  when  the  physician  is  appointed  by  the  court 
and  commissioned  to  make  the  examination  and  give  his 
opinion,  he  is  acting  in  a  ministerial,  not  a  judicial,  capac- 
ity, and  the  law  holds  him  to  the  same  degree  of  accounta- 
bility for  skill,  care  and  judgment,  to  the  party  whose  rights 
are  involved,  and  an  error  in  his  opinion  arising  from  his 
negligence,  willfulness  or  corruption,  will  make  him  liable 
to  the  respondent  for  the  damage  sustained  by  the  latter 
as  a  result  of  such  error.  His  liability  is  predicated  upon 
the  breach  of  his  duty  to  make  an  ordinarily  skillful  and 
careful  examination,  and  to  use  his  best  judgment  in  form- 
ing his  opinion  therefrom,  whereby  his  conclusion  was 


8  Harriott  v .  Plimpton,  166  Mass.,  585. 


ENFORCEMENT   OF   LIABILITY.  163 

wrong  and  injury  resulted  to  the  respondent.  He  is  not 
liable  for  the  false  testimony,  even  though  it  be  perjured, 
and  uttered  in  malice.9 

Usual  Results  Not  the  Test  of  Duty. — The  patient  has  a 
right  to  expect  proper  treatment  in  the  light  of  the  ad- 
vanced state  of  the  science  at  the  time  and  place,  and  the 
fact  that  the  result  of  treatment  is  as  good  as  is  usually 
obtained  in  like  cases  similarly  situated,  will  not  excuse  the 
physician  for  failing  to  give  the  patient  the  full  benefit  of 
the  chances  involved  in  proper  treatment.10 

How  Proven. — The  method  of  treatment,  what  was  done 
and  when,  how  and  by  whom,  and  all  facts  within  ordinary 
observation,  may  be  established  by  the  testimony  of  ordi- 
nary witnesses,  but  the  propriety  and  skill  of  the  treatment 
or  operation  can  be  proven  only  by  experts  on  the  subject.11 
Whether  the  treatment  in  question  was  in  conformity  with 
established  principles  and  usage;  whether  a  surgical  oper- 
ation was  performed  skillfully;  whether  a  specified  diag- 
nosis was  proper;  whether  subsequent  disease  was  due  to 
alleged  negligent  treatment;  whether  the  treatment  con- 
formed to  the  principles  of  the  school  of  medicine  in  ques- 
tion; whether  certain  results  are  usual  from  certain  in- 
juries or  diseases,  are  medical  questions,  and  from  the  very 
nature  of  the  case,  opinion  evidence  in  relation  thereto 
must  come  from  physicians.12  A  physician,  however,  can- 
not give  his  opinion  that  there  was  not  malpractice,  as  that 
is  a  conclusion  of  law.13  Expert  opinions  cannot  be  intro- 
duced by  hearsay.14 

FAILURE  TO  TAKE  X-RAY. — Failure  of  a  physician  to  take 
an  X-ray  of  a  broken  arm  does  not  constitute  negligence, 


9  Cooley  on  Torts,  210. 

10  Burk  v.  Foster,  114  Ky.,  20. 

11  Spaulding  v.  Bliss,   83  Mich.,   311. 
!2Tifft   v.   Wilcox,    6    Kans.,    46. 

13  Hanover  v.  Koch,   84  111.,   408,  409. 

14  Sims  v.  Moore,  61  la.,   128. 


164  MEDICAL   JURISPRUDENCE. 

even  though  the  physician  diagnosed  the  break  as  a  sprain, 
where  the  evidence  showed  that  the  diagnosis  was  made  in 
a  careful  and  proper  manner  and  that  the  physician  acted 
with  ordinary  skill  and  due  care  in  the  premises.15  How- 
ever, the  use  of  the  X-ray  in  diagnosis  has  become  so  gen- 
eral in  metropolitan  cities  and  is  so  effective  that,  in  certain 
classes  of  cases,  the  physician  who  does  not  take  such  pre- 
caution when  such  means  are  readily  available  to  him, 
doubtless  would  and,  certainly  at  this  stage  in  the  develop- 
ment of  the  science,  should  be  made  to  respond  in  damages 
for  an  injury  to  his  patient  for  a  wrong  diagnosis  followed 
by  improper  treatment,  if  it  should  be  made  to  appear  that 
an  X-ray  would  readily  have  disclosed  the  true  condition 
and  thus  have  enabled  him  to  avoid  the  injury  to  his  pa- 
tient. The  physician  must  use  all  approved,  practical, 
available,  distinctive  means  to  determine  the  condition  of 
his  patient  and  relieve  him  of  his  ailment,  and  a  failure  in 
this  respect  on  his  part  should  spell  liability  to  him  for  all 
damages  resulting  to  his  patient  therefrom. 

Burden  of  Proof. — The  burden  is  upon  the  patient  to  show 
by  a  preponderance  of  competent  evidence, — (a)  that  the 
physician  was  negligent,  and  (b)  that  certain  injury  re- 
sulted to  him  thereby.16  Patient  must  prove  these  facts 
whether  the  action  be  for  malpractice  or  as  a  defense  of  or 
in  recoupment  in,  an  action  by  the  physician  for  a  fee.17 

PREPONDERANCE  OF  EVIDENCE. — It  is  not  necessary  to 
prove  these  facts  beyond  a  reasonable  doubt  nor  by  evidence 
sufficient  to  establish  a  clear  conviction  thereof.  A  pre- 
ponderance is  all  that  is  required.18 

Questions  which  are  susceptible  of  exact  demonstration 


15  Wells  v.  Ferry  Baker  Lumber  Company,  57  Wash.,  658. 

16  Ewing  v.   Goode,    78   Fed.,    442,    443. 

17  Styles  v.  Tyler,  64  Conn.,  432;   Robinson  v.  Campbell,  47  la.,  625. 

18  Hoener  v.  Koch,  84  111.,  408. 


ENFORCEMENT   OF   LIABILITY.  165 

or  absolute  determination,  are  not  often  the  subject  of  liti- 
gation.19 

NEED  NOT  EXCLUDE  ALL  PROBABLE  CAUSES. — It  is  not  nec- 
essary to  exclude  every  possible  cause  for  the  injury,  except 
the  negligence  of  the  practitioner,  it  being  sufficient  to  show 
that  the  wrongful  treatment  was  the  probable  cause.  But 
the  jury  is  not  permitted  to  determine  by  mere  conjecture 
between  two  equally  probable  causes  of  the  injury  com- 
plained of,  for  only  one  of  which  the  practitioner  is  respon- 
sible.20 The  patient,  however,  makes  out  his  case,  under 
such  circumstances,  when  he  has  shown  that  it  is  more 
probable  that  the  cause  for  which  the  practitioner  was  re- 
sponsible is  the  one  that  was  the  proximate  cause  of  the 
untoward  results.21 

JURY  is  NOT  PERMITTED  TO  GUESS  AT  LIABILITY. — The  jury 
cannot  be  permitted  to  determine  by  guess  or  mere  con- 
jecture between  two  equally  probable  causes  of  the  injury, 
for  only  one  of  which  the  practitioner  is  responsible.  Thus, 

INFECTION  FOLLOWING  TREATMENT. — Proof  that  an  infec- 
tion followed  treatment  or  operation  does  not  discharge  the 
burden  resting  upon  the  patient  to  establish  liability  of  the 
practitioner.  He  must  introduce  evidence  tending  to  show 
that  the  practitioner  was  to  blame  and  that  it  is  at  least 
probable  that  the  untoward  result  was  due  to  the  improper 
conduct  of  the  latter,  and  might  not  have  happened  but  for 
such  conduct.22 

MALPRACTICE,  OR  OTHER  CAUSES. — Where  the  death  of  a 
patient  might  have  been  caused  by  the  improper  adminis- 
tration of  an  anesthetic  by  the  physician,  or  calcareous  de- 
generation of  the  heart,  the  physician  is  not  liable  unless  it 


19  Boucher  v.  Larochelle,   74  N.  H.,   433. 

20  Deschennes  v.  Concord  R.  Co.,  69  N.  H.,  285. 

21  Boucher  v.  Larochelle,  74  N.  H.,  433;   15  L.  B.  A.,  416. 

22  Ewing  v.  Goode,  78  Fed.,  443. 


166  MEDICAL   JUKISPKUDENCE. 

is  made  to  appear  from  all  the  evidence  that  the  death  re- 
sulted either  wholly,  or  in  part,  from  the  improper  use  or 
administration  of  the  anesthetic.23 

Where  the  improper  treatment  is  shown  and  the  inquiry 
is  addressed  to  the  cause  of  the  injury,  the  jury  is  not  per- 
mitted to  conjecture  or  surmise  other  causes,  but  such  other 
causes  must  be  conceded  or  proved  by  competent  evidence.24 

The  burden  of  proving  contributory  negligence  is  on  the 
physician, — he  holding  the  affirmative  of  the  proposition.25 

Different  Schools  of  Medicine. — The  law  recognizes  that 
there  are  different  schools  of  medicine  and  it  does  not  favor 
any  particular  school.  The  treatment  adopted  by  a  phy- 
sician is  to  be  tested  by  the  principles  and  practices  of  the 
school  to  which  he  belongs  and  under  which  he  practices. 
The  jury  are  not' authorized  to  consider  the  relative  merits 
of  the  different  systems.26  The  word  "physician"  is  not 
restricted  to  any  particular  school.27  Where  an  action  was 
brought  against  an  osteopath  to  recover  damages  for  al- 
leged injuries  caused  to  the  patient  by  reason  of  his  errone- 
ously diagnosing  her  trouble  as  dislocation  of  the  hip  and 
treating  her  for  that  affliction,  when  in  fact  she  was  suffer- 
ing from  incipient  hip  disease,  it  was  shown  that  hip  disease 
is  ascribed  to  the  same  cause  and  diagnosed  in  the  same  way 
by  osteopaths  and  physicians  of  all  schools,  and  thereupon 
the  plaintiff  called  several  allopathic  physicians  to  testify 
as  to  the  correctness  of  the  defendant's  diagnosis.  The 
court  held  that  such  testimony  was  properly  admitted,  and 
said:  "The  expert  medical  witnesses  offered  by  the  plain- 
tiff were  competent  to  express  an  opinion  as  to  the  diag- 


23  Yaggle  v.  Allen,  48  N.  Y.  Supp.,  827. 

24  Boucher  v.  Larochelle,  74  N.  H.,  433. 

25  Gramm  v.  Boener,  56  Ind.,  497. 

26  Bowman  v.  Woods,  1  Greene  (la.),  441;  Force  v.  Gregory,  63  Conn.,  167;  Nelson  v. 
Harrington,  72  Wis.,  591. 

27  Raynor  v.  State,  62  Wis.,  289 ;  White  v.  Carroll,  42  N.  Y.,  161 ;  Corsi  r.  Maretzek, 
4  E.  D/Smith   (N  Y.),  1. 


ENFORCEMENT   OF   LIABILITY.  167 

nosis  that  was  made  by  the  defendant  of  the  plaintiff's 
trouble,  as  related  by  the  lay  witnesses,  to-wit,  that  she  had 
partial  dislocation  of  the  hip-joint,  and  did  not  have  hip 
disease,  and  also  competent  to  testify  as  to  any  scientific 
fact  that  is,  or  ought  to  be,  known  to  every  physician  of 
every  school  and  system;  but  they  are  not  competent  to 
express  an  opinion  as  to  the  treatment  of  the  plaintiff  by 
the  defendant,  unless  it  should  appear  that  both  the  schools 
to  which  the  witnesses  and  the  defendant  belonged  em- 
ployed the  same  treatment. ' ' 28 

In  an  action  against  a  Christian  Scientist  for  malprac- 
tice, the  propriety  and  skillfulness  of  his  treatment  must 
be  tested  by  the  generally  accepted  doctrines  of  his  school, 
and  even  though  such  treatment  in  the  particular  case  is 
against  public  policy  as  announced  in  the  law,  still  the  pa- 
tient cannot  recover  for  injuries  sustained  .thereby,  if  the 
treatment  was  proper  when  measured  by  that  standard, 
and  if  he  knowingly  employed  the  practitioner  for  that 
purpose  and  consented  to  such  treatment.29  Where  the 
patient  is  a  minor  who  has  not  arrived  at  the  age  of  dis- 
cretion, a  different  test  should  be  applied  and  the  practi- 
tioner, whatever  his  belief  or  religion,  should  be  required 
to  show  that  his  method  of  treatment  was  in  accordance 
with  enlightened  intelligence  and  the  recognized  verities 
of  the  time,  and  no  maudlin  sentiment  of  religious  convic- 
tions should  be  permitted  to  shield  him  from  responding 
in  damages  for  the  consequences  of  his  folly,  or  ignorance, 
or  zeal. 

Where  an  X-ray  was  used  by  a  physician  to  locate  a 
foreign  substance  in  the  lungs  of  a  patient,  and  not  in  con- 
nection with  treating  the  patient  for  the  trouble,  a  college 
professor  who  was  familiar  with  the  principles  and  effects 


28  Grainger  v.  Still,   187  Mo.,   197;   85   S.  W.,   1114. 

29  Spead  v.  Tomlinson,  73  N.  H.,  46. 


168  MEDICAL    JURISPRUDENCE. 

of  the  rays  on  the  animal  organism,  and  experienced  in 
their  use  in  taking  pictures  and  diagnosing  anatomical 
conditions,  was  competent  to  testify  as  to  the  proper  method 
of  operating  the  appliances,  and  that  in  the  case  at  bar  the 
tube  was  held  too  close  to  the  body  and  that  the  exposure 
was  too  long,  thus  causing  the  burns  in  question.  The 
method  of  operating  the  apparatus,  the  degree  of  exposure 
which  the  patient  could  stand  for  diagnostic  purposes  and 
the  anatomical  effect  of  the  rays,  could  not  possibly  be 
affected  by  the  school  of  practice  to  which  the  operator  be- 
longed and  must  necessarily  be  the  same  regardless  of  the 
school.30 

Failure  to  Present  Bill  No  Admission  of  Wrong. — In  an 
action  for  malpractice,  the  patient  cannot  show  that  he  has 
paid  nothing  for  the  services  and  that  no  bill  has  been  ren- 
dered to  him  or  charge  made  against  him  by  the  practi- 
tioner, as  such  failure  is  not  an  admission  of  guilt.31  How- 
ever, where  the  fact  that  nothing  was  paid  for  the  services 
was  introduced  by  the  practitioner,  it  was  held  harmless 
under  the  particular  circumstances.32 

Exhibiting  Injury. — In  an  action  for  malpractice,  the  pa- 
tient may  exhibit  the  injured  member  to  the  jury  in  order 
that  they  may  determine  the  nature  of  the  trouble  charged 
to  the  practitioner,  provided  the  demonstration  does  not 
involve  indecent  exposure.33 

When  the  Relation  Begins. — The  responsibilities  of  the 
relation  attach  from  the  very  moment  of  the  acceptance  of 
a  call  by  the  physician.  When  a  patient  comes  to  the  office, 
the  relation  ordinarily  begins  with  the  commencement  of 
the  first  diagnosis,  however  informal  it  may  be,  and  an  un- 


30  Henslin  v.  Wheaton,  91  Minn.,  219. 

31  Baird  v.  Gillett,  47  N.  Y.,   186. 

32  Jones   r.   Angel,   95   Ind.,   376. 

33  Lenark  v.  Dougherty,    153   111.,    163,    165;   Jefferson  Ice  Co.   v.   Zwicokoski,    78   HI. 
App.,  646;  Fowler  v.  Sergeant,   1  Grant's  Cases   (Pa.),  355;  Hess  v.  Lowrey,   122  Ind., 
225 ;  Freeman  v.  Hutchinson,  15  Ind.  App.,  639. 


ENFORCEMENT    OF   LIABILITY.  169 

skillful,  careless  examination  resulting  in  a  mistaken  recom- 
mendation that  no  treatment  or  operation  is  necessary,  if  it 
results  in  injury  to  the  patient,  is  as  much  a  breach  of  duty 
as  though  it  had  been  followed  by  improper  treatment. 

PROMPT  RESPONSE  TO  CALL. — If  a  physician  accepts  a  call, 
he  must  respond  with  reasonable  promptness,  under  the  cir- 
cumstances, and  if  he  defaults  therein  with  resulting  injury 
to  his  patient,  he  will  be  liable  for  the  damages  sustained.34 

When  the  Relation  Ends. — The  relation,  once  begun,  does 
not  terminate  until  the  patient  has  been  discharged  as  cured 
or  until  the  physician  has  been  relieved  of  further  responsi- 
bility by  the  patient.  If  he  quits  the  case  too  soon,  or,  when 
discharging  the  patient,  fails  to  give  him  proper  and  neces- 
sary instruction  to  enable  the  patient  to  get  along  without 
his  services,  he  is  guilty  of  a  breach  of  duty.  Of  course, 
the  physician  or  patient  can  always  terminate  the  relation 
on  notice  to  that  effect.  When  the  notice  is  given  by  the 
patient,  the  relation  terminates  in  accordance  therewith  and 
it  may  be  peremptory.  If  the  physician  gives  the  notice  at 
a  time  when  the  patient  is  still  in  need  of  medical  or  sur- 
gical attention,  the  relation  will  continue  for  a  reasonable 
time  thereafter  to  enable  the  patient,  with  reasonable  dili- 
gence, to  secure  another  practitioner.  Conceding  that  the 
relation  has  ceased,  the  parties  are  in  the  same  position  as 
though  the  relation  had  never  existed,  and  the  physician  is 
not  bound  to  respond  to  a  new  call,  however  urgent,  espe- 
cially when  another  physician  has  been  on  the  case  in  the 
meantime.35 

What  Constitutes  Malpractice,  Is  A  Question  of  Law. — 
The  question  as  to  what  is  the  proper  degree  of  skill  and 
care  required  of  a  practitioner  is  a  question  of  law,  for  the 
court  to  determine  and  announce.36  But  the  question  as  to 

34  Adams  v.  Henry,  165  Mich.,  554. 

35  Tomer  v.  Aiken,  126  la.,  114;  24  A.  C.,  833 
3«Link  v.   Sheldon,    136   N.  Y.,   1. 


170  MEDICAL   JURISPRUDENCE. 

whether  or  not  these  requirements  were  present  in  the  par- 
ticular case,  is  a  question  of  fact  for  the  jury  to  determine.37 
In  other  words,  it  is  for  the  jury  to  say,  from  all  the  evi- 
dence, whether  or  not  the  treatment  amounted  to  negligence, 
under  the  rule  of  skill,  care  and  judgment  required  by  the 
law.38 


37  Harriott  v.  Plimpton,   166  Mass.,  585;  Langford  v.  Jones,  18  Ore.,  307;  Olmstead  v. 
Gere,  100  Pa.,   127. 

38  Van  Hooser  v,  Berghoff,   90  Mo.,  487;   Hewitt  v.   Eisenbart,   36  Neb.,   794;   Tifft  v. 
Wilcox,  6  Kans.,  46;  Carpenter  v.  Blake,  60  N.  Y.,  488. 


CHAPTER  XV. 

CIVIL  MALPRACTICE. 

Defenses,  Damages  and  Other  Features. 

Defenses. 

Proper  Treatment. — In  defense  of  an  action  for  malprac- 
tice, the  practitioner  is  entitled  to  show  by  expert  evidence 
that  the  treatment  given  was  such  as  a  practitioner  of  ordi- 
nary skill,  care  and  good  judgment,  would  and  ought  to 
have  given.1 

Former  Judgment  for  Physician. — On  the  trial  of  an 
action  for  malpractice  against  a  physician,  he  may  show 
that  he  previously  brought  suit  to  recover  his  fee  and 
obtained  a  judgment,  although  defended  by  the  present 
plaintiff  on  the  ground  of  malpractice.  In  some  States  such 
judgment  is  a  bar  to  the  subsequent  action.2  However,  if 
the  patient  did  not  appear  and  defend  the  suit  for  fee  but 
permitted  the  judgment  to  be  entered  by  default,  it  has  been 
held  that  he  is  not  debarred  his  right  of  action  for  malprac- 
tice.3 The  courts  are  not  in  unison  on  the  effect  of  judg- 
ments for  fees  on  subsequent  action  for  malpractice  with 
reference  to  the  same  services.4 

Injury  from  Other  Causes. — The  physician  may  show  that 
the  injury  came,  or  might  with  equal  likelihood  have  come, 
from  other  causes  than  his  carelessness,  and  if  the  evidence 
leaves  it  uncertain  whether  the  untoward  results  complained 
of  arose  from  the  wrongful  conduct  of  the  practitioner  or 


1  Quinn  v.  Higgins,  63  Wis.,  664. 

2  Howell  v.  Goodrich,  69  111.,  556 ;  Blair  v.  Bartlett,  75  N.  Y.,  150. 

3  Lawson  v.  Conaway,  37  W.  Va.,   159. 

4  Jordahl  v.  Berry,   72  Minn.,   119;   45  L.  R.  A.    (O.  S.),   541. 

171 


172  MEDICAL,    JUKISPKUDENCE. 

from  other  causes,  the  patient  cannot  recover  in  an  action 
for  malpractice  nor  defeat  an  action  by  the  physician  for 
his  fee,  because  the  law  indulges  no  presumption  against 
the  latter.5 

One  Suit — One  Recovery. — The  law  does  not  permit  a 
multiplicity  of  suits  for  one  cause  of  action,  but  requires  the 
plaintiff  to  prove  his  entire  damage,  present  and  prospec- 
tive, in  his  first  case.  Hence,  a  patient  cannot  bring  suc- 
cessive suits,  from  time  to  time  as  his  loss  may  accrue,  for 
malpractice,  but  he  is  required  to  prove  his  entire  damage 
in  the  first  action,  and  if  he  fails  to  do  so  he  must  bear  the 
loss.6  The  case  just  cited  was  an  action  against  a  physician 
for  malpractice  in  setting  a  fractured  arm.  of  plaintiff's  son. 
It  appeared  that  prior  to  the  commencement  of  the  suit  the 
physician  brought  an  action  against  the  plaintiff  to  recover 
his  fee  for  the  same  services ;  that  the  plaintiff  defended  on 
the  ground  of  malpractice  and  that  on  the  trial  the  physician 
recovered  the  full  amount  of  his  claim.  Held,  that  adjudica- 
tion in  the  suit  for  the  fee  was  a  bar  to  a  recovery  for  the 
alleged  malpractice. 

Mistake  by  Patient. — A  patient  cannot  recover  for  in- 
juries resulting  from  a  mistake  into  which  he  himself  led 
the  physician,  unless  the  conduct  of  the  latter  was  incon- 
sistent with  ordinary  and  reasonable  skill  and  care.7 

Damages. 

Kinds  of  Damages. — Damages  are  three  in  kind, — (a) 
Nominal,  (b)  Compensatory,  and  (c)  Exemplary  or  Puni- 
tive. 

Nominal  damages  are  a  trifling  sum  awarded  when  a 
breach  of  duty  or  an  infraction  of  a  right  of  the  plaintiff 
is  shown,  but  no  serious  loss  is  proven  to  have  been  sus- 

5  Boucher  v.  Larochelle,   74  N.  H.,  433. 

6  Howcll  v.  Goodrich,  69  111.,  556. 

7  Park  v.  Adams,  12  Mete.,  417 ;  Clark  v.  Keriom,  4  E.  D.  Smith,  21. 


DEFENSES,    DAMAGES,    OTHER   FEATURES.  173 

tained,  or  where,  from  the  nature  of  the  case,  some  injury 
has  been  done,  the  amount  of  which  the  proofs  fail  to  show 
with  sufficient  certainty,  or  not  at  all,  or  cannot  be  shown. 
They  are  "a  peg  to  hang  costs  upon."  They  arise  by 
implication  of  law  by  reason  of  a  breach  of  duty.8 

Compensatory  damages  are  such  as  will  compensate  the 
wronged  party  for  the  injury  he  has  sustained  and  nothing 
more.  They  proceed  from  a  sense  of  natural  justice  and 
end  at  the  point  where  the  wrong  has  been  repaired.9 

Exemplary  or  Punitive,  or  Vindictive  damages  are  those 
given  in  addition  to  compensation  for  a  loss  sustained,  in 
order  to  punish  and  make  an  example  of  the  wrongdoer. 
They  are  allowed  where  a  tort  is  aggravated  by  evil  motives, 
actual  malice,  deliberate  violence,  oppression  or  fraud,  or 
where  the  party  acts  willfully  or  with  such  gross  negligence 
as  to  indicate  a  disregard  of  the  rights  of  others.10  The 
purpose  and  intent  of  such  damages  are  to  punish  the  of- 
fender and  furnish  an  example  of  the  dangers  consequent 
on  such  misconduct.11 

While  there  is  a  maxim  of  law  older  than  our  language — 
De  minimus  non  curat  lex — the  law  does  not  concern  itself 
with  triflers — still  if,  as  a  matter  of  substantial  right,  a 
party  is  entitled  to  nominal  damages,  carrying  costs  of  suit, 
and  the  jury  finds  in  favor  of  his  adversary,  a  new  trial 
should  be  allowed  him  on  motion,  or  if  judgment  has  been 
entered  against  him  for  costs,  it  should  be  set  aside  and  a 
new  trial  granted;  but  the  maxim  usually  applies  in  such 
cases  and  appellate  courts  will  not  interfere.12 

Presumptions. — It  is  to  be  assumed  that  every  physical 


8  Stanton  v.  R.  Co.,  59  Conn.,  272;  Maher  v.  Wilson,   139  Cal.,  514;  W.  U.  T.  Co.  V. 
Lawson,  66  Kan.,  660;   Sellers  v.  Mann.,  113  Ga.,  643. 

9  McKnight  v.  Dessny,  198  Pa.,  323;   Sachra  v.  Massilla,   120  la.,  562;  Navigation  Co. 
v.  U.  S.,  148  U.  S.,  312;   Reid  v.  Terwilliger,   116  N.  Y.,  530. 

10  Con.  Coal  Co.  v.  Haenni,  146  111.,  614,  628. 

11  Garrick  v.  R.  Co.,  53   8.  C.,  448. 

12  Stevens  v.  Yale,  113  Mich.,  580;  Fisher  v.  Hopkins,  85  111.  App.,  207;  5  A.  C.,  223, 
225. 


174  MEDICAL   JURISPRUDENCE. 

endowment,  function  and  capacity  is  of  importance  in  the 
life  of  every  man  and  woman  and  that  occasion  will  arise 
for  the  exercise  of  each  and  all  of  them,  and  to  the  extent 
to  which  any  function  is  destroyed  or  its  discharge  rendered 
painful  or  perilous  by  the  wrongful  infliction  of  personal 
injury,  is  the  party  complainant  entitled  to  damages.  We 
can,  in  other  words,  conceive  of  no  physical  injury  wrong- 
fully inflicted,  whether  entailing  pain  only,  or  disfigurement 
or  incapacity,  relative  or  absolute,  to  perform  any  of  the 
functions  of  life,  which  may  not  be  made  the  predicate  for 
compensation  in  damages.13 

Elements  of  Damages. — In  assessing  damages  for  mal- 
practice the  court  or  jury  should  take  into  consideration  the 
pain  and  suffering  incident  to  the  wrongful  treatment,  loss 
of  time,  loss  of  health,  increased  delay  in  effecting  a  cure 
and  the  probability  of  permanent  injury  necessarily  or 
reasonably  consequent  on  the  injury  sustained  by  the  mal- 
treatment.14 

He  may  show  his  pecuniary  loss  direct  or  indirect,  im- 
paired earning  capacity,  loss  of  time  and  its  value,  actual 
expenses  incurred  and  pain  and  suffering,  even  up  to  the 
time  of  trial,  any  disfigurement  of  person  resulting  from 
the  malpractice,  permanency  of  the  injury  resulting  there- 
from, and  the  station  and  condition  in  life  of  the  patient, 
mental  worry,  anxiety,  discomfort,  mortification  and 
chagrin,  by  reason  of  the  injury  from  the  malpractice.15 

The  correct  measure  of  damages  for  injury  caused  by 
carelessness  or  unskillful  treatment  by  a  physician  is  reason- 
able compensation  for  the  bodily  pain  and  mental  suffering, 
if  any,  endured  by  the  patient,  and  the  impairment  of  the 


13  Alabama  R.  Co.  v.  Hill,  93  Ala.,  514,  515. 

14  McCracken  v.  Smeathers,  122  N.  C.,  799. 

15  Chamberlain  v.  Porter,  9  Minn.,  244 ;  Tint  v.  Wilcox,   6  Kans.,  46 ;   Cody  v.  Weins, 
1  Mont.,  424;  Coombs  v.  King,  107  Me.,  376,  380. 


DEFENSES,   DAMAGES,   OTHER  FEATURES.  175 

patient's  ability  to  earn  money  and  his  loss  of  time,  if  any, 
occasioned  by  the  negligence  of  the  physician,  and  where 
the  act  is  also  willful  or  the  negligence  gross,  exemplary 
damages  may  be  assessed.16 

Patient's  Duty  to  Prevent  Aggravation  of  Injury. — It  is  a 
general  rule  of  law  that  a  person  who  is  injured  by  the  fault 
of  another  must  use  all  reasonable  means  to  protect  himself 
against  aggravation  of  the  injury  and  cannot  recover  for 
any  suffering  or  physical  disability  which,  under  the  circum- 
stances, could  have  been  prevented  by  the  use  of  reasonable 
precaution  and  attention  in  caring  for  the  injury.17  But 
this  doctrine  can  have  but  little  bearing  in  a  case  of  mal- 
practice, because  the  patient  is  usually  justified  in  assum- 
ing that  he  is  already  receiving  proper  medical  and  surgical 
attention. 

A  person  who  is  suffering  from  an  injury  is  required 
to  use  reasonable  diligence  to  employ  a  physician  of  skill  to 
treat  him,  where  treatment  is  reasonably  necessary,  and  if 
he  is  not  negligent  in  failing  to  employ  any  physician,  all 
the  damages  he  sustains  will  be  regarded  as  the  natural  con- 
sequences of  his  original  injury,  even  though  physicians 
may  have  the  opinion  that,  with  medical  assistance,  the 
result  would  not  have  been  as  serious;  and  if  he  employs 
a  skillful  physician,  the  law  regards  an  injury  resulting  from 
the  mistakes  of  such  physician,  or  from  the  failure  of  the 
means  employed  by  him  to  effect  a  cure,  as  a  part  of  the 
immediate  and  direct  damages  flowing  from  the  original 
injury.18 

The  reason  for  the  rule  does  not  apply  in  cases  of  patient 
and  physician ;  hence,  a  patient  is  not  bound  to  seek  the  aid 


16  Dorris  v.  Warford,  124  Ky.,  768. 

IT  Murphy  v.  S.  P.  Co.,  31  Nev.,  120,  134;  Osborne  v.  Detroit,  32  Fed.,  36;  21  A.  0., 
502,  513. 

18  Variety  Mfg.  Co.  v.  Landaker,  227  111.,  22,  25. 


176  MEDICAL    JUEISPEUDENCB. 

of  other  practitioners  to  mitigate  the  consequences  of  the 
mistakes  of  his  attending  physician  as  long  as  the  relation 
exists.19 

Mere  Contingencies. — Consequences  which  are  contingent, 
speculative  or  merely  possible  are  not  proper  to  be  consid- 
ered in  assessing  damages.  It  is  not  enough  that  the 
injuries  received  may  develop  into  more  serious  conditions 
than  those  which  are  visible  at  the  time  of  the  injury,  or  even 
that  they  are  likely  so  to  develop.  To  entitle  the  plaintiff 
to  recover  present  damages  for  apprehended  future  conse- 
quences, there  must  be  such  a  degree  of  probability  of 
their  occurring  as  amounts  to  a  reasonable  certainty  that 
they  will  result  from  the  original  injury.20  Therefore, 
physicians  will  not  be  permitted  to  testify  that  certain  speci- 
fied results  sometimes  follow  a  specified  inquiry.21 

Cannot  Recover  for  Original  Injury  or  Disease. — The 
damages  which  a  patient  may  recover  are  those  growing  out 
of  the  injury  resulting  from  the  negligence,  but  not  for  any 
loss  sustained  by  reason  of  the  original  disease  or  condition. 

Mitigation. — Where  a  physician  is  sued  for  malpractice 
resulting  in  the  death  of  his  patient,  he  may  show  that  the 
nature  of  the  patient's  disease  was  of  such  character  that 
he  would  have  died  soon  in  any  event.  Though  not  a  bar, 
the  fact  goes  to  mitigation  of  the  damages.22 

Excessive  Damages. — In  an  action  for  malpractice,  a  ver- 
dict for  the  patient  will  not  be  set  aside  on  the  ground  that 
the  damages  found  are  excessive,  unless  it  appears  that  the 
jury  was  influenced  by  passion,  prejudice  or  other  improper 
motive.23 

An  Illinois  court  considered  that  a  judgment  for  three 


19  Chamberlin  v.  Morgan,  68  Pa,   168. 

20  McLain  v.  R.  C.,  116  N.  Y.,  460,  467. 

21  Blate  v.  R.  Co.,  44  N.  Y.  Supp.,  615;  Pry  v.  R.  Co.,  45  la.,  416. 

22  Chase  v.  Nelson,  39  HI.  App.,  53. 

23  Chamberlain  v.  Porter,  9  Minn.,  260;  Kelsey  v.  Hay,  84  Ind.,  189. 


DEFENSES,   DAMAGES,    OTHER  FEATURES.  177 

thousand  dollars  was  not  excessive  in  a  malpractice  case, 
where  the  defendant,  while  claiming  to  put  in  artificial 
teeth  without  plate  or  bridge  work,  placed  in  the  plaintiff 's 
mouth  heavy  bridge  work  by  what  was  pretended  to  be  a 
secret  process,  and  in  so  doing  filed,  ground,  broke  and 
loosened  plaintiff's  teeth  and  produced  other  damage  to 
her  mouth.  The  case  contained  an  element  of  fraud  and 
deceit,  and  the  court  held  that  there  was  evidence  to  support 
such  a  charge,  and  these  facts  should  be  taken  into  consid- 
eration in  accepting  the  case  as  an  example,  since  it  appears 
from  the  report  of  the  case  that  the  damages  allowed  were 
more  than  compensatory.24 

A  verdict  for  $500  was  held  not  excessive  in  an  action 
against  a  dentist  for  negligence  in  allowing  a  tooth  to  fall 
into  the  patient's  windpipe  during  the  operation  of  extrac- 
tion.25 

Form  of  Action. — A  suit  for  malpractice  is  a  civil  action. 
Such  actions  are  almost  invariably  in  tort,  that  is,  ex  delicto 
in  character.  However,  a  practitioner  may  make  a  special 
contract  with  his  patient  for  special  skill  and  care,  for  viola- 
tion of  which  he  will  be  liable  in  contract;  but  where  the 
action  is  for  a  breach  of  the  obligation  imposed  by  law  as  a 
matter  of  public  necessity  and  policy,  it  is  in  the  nature  of 
tort  and  not  in  contract.26  Nevertheless,  "if  the  defendant 
made  a  contract  with  the  plaintiff  to  treat  him  and  his  fam- 
ily, as  alleged  in  the  petition  .  .  .  and  simply  broke  the  con- 
tract by  refusing  to  come  when  sent  for  .  .  .  the  right  of 
action  would  be  simply  for  the  breach  of  the  contract,  and 
there  would  be  no  right  of  action  in  tort.  But  if  the  phy- 
sician came  and  undertook  the  case  and,  having  undertaken 
it,  was  negligent  in  his  treatment,  then  a  cause  of  action  in 
tort  may  be  maintained  for  the  non-performance  of  the  duty 


24  Prout  v.  Martin,  160  111.  App.,  11. 

25Keily  v  Colton,  1  City  Ct.  (N.  Y.),  489. 

26  Carpenter  v.  Walker,  170  Ala.,  659 ;  25  A.  C.,  866. 


178  MEDICAL   JURISPRUDENCE. 

which  the  law  cast  upon  him  when  he  undertook  to  treat  the 
case."27  A  practitioner  who  accepts  but  fails  to  respond 
to  a  call  cannot  be  said  to  be  guilty  of  malpractice,  and,  if 
the  patient  is  damaged,  his  action  ought  to  sound  in  con- 
tract.28 But  even  in  such  case,  the  question  might  arise  as 
to  whether  the  delay  in  responding  was  due  to  refusal  to  call 
at  all,  or. to  negligence  in  determining  when  to  make  the 
visit.  Some  courts  hold  that  in  any  case  the  patient  may 
waive  the  tort  and  sue  in  contract.29  And  the  law  of  con- 
tracts with  reference  to  limitations  and  survival  applies.30 
Where  the  patient  sues  for  the  breach  of  a  special  agree- 
ment his  action  is  in  contract.31 

BEASON  FOE  ALLEGING  CONTRACT. — In  actions  of  malprac- 
tice the  usual  allegations  of  employment  of  the  practitioner 
by  the  patient  are  mere  matters  of  inducement  to  show  the 
relation  existing  between  the  parties  and,  inferentially,  the 
obligation  imposed  by  law  on  the  practitioner  by  reason 
thereof. 

Death  from  Malpractice. — At  common  law  no  action  lies 
for  damages  caused  by  the  death  of  a  human  being,  by  the 
wrongful  or  negligent  act  of  another,  in  favor  of  the  heirs, 
distributees  or  personal  representatives  of  the  decedent.32 

LORD  CAMPBELL'S  ACT. — In  1846  the  British  Parliament 
passed  a  statute  familiarly  known  as  Lord  Campbell's  Act, 
in  words  as  follows:  "That  whensoever  the  death  of  a 
person  shall  be  caused  by  wrongful  act,  neglect  or  default, 
and  the  act,  neglect  or  default  is  such  as  would  (if  death 
had  not  ensued)  have  entitled  the  party  injured  to  main- 
tain an  action  and  recover  damages  in  respect  thereto,  then 


27  Randolph  v.  Snyder,  139  Ky.t  159. 
zsSee  Adams  v.  Henry,  165  Mich.,  554;  24  A.  C.,  829. 
29  Lane  v.  Boicourt,   128  Ind.,  420. 

so  Staley  v.  Jameson,  46  Ind.,  156 ;  Long  v.  Morrison,  14  Ind.,  595 ;  Goble  v.  Dillon, 
86  Ind.,  327. 

31  Burns  v.  Barenfield,  84  Ind.,  43. 
82  Holton  v.  Daly,  106  HI.,  181,  136. 


DEFENSES,   DAMAGES,    OTHEE  FEATURES.  179 

and  in  every  such  case,  the  person  who  would  have  been 
liable  if  death  had  not  ensued,  shall  be  liable  to  an  action 
for  damages,  notwithstanding  the  death  of  the  person  in- 
jured and,  although  the  death  shall  have  been  caused  under 
such  circumstances  as  amount,  in  law,  to  a  felony."  The 
act  then  provides  that  the  suit  shall  be  brought  for  the 
benefit  of  the  wife,  husband,  parent  and  child  of  the  de- 
ceased in  the  name  of  the  personal  representative  of  the 
deceased. 

ADOPTED  GENERALLY. — This  statute  has  been  enacted,  with 
slight  modifications  and  additions,  in  all  the  States  of  the 
United  States,  and  in  all  countries  which  follow  English 
jurisprudence,  and  wherever  such  a  statute  is  in  force  a 
practitioner  is  liable  for  all  damages  sustained  by  the  bene- 
ficiaries named  in  the  statute,  in  case  the  death  of  his  pa- 
tient results  from  his  malpractice. 

DAMAGES. — In  these  cases,  where  the  beneficiaries  are 
lineal  kindred  of  the  deceased,  the  damages  which  are  re- 
coverable are  usually  limited  to  the  pecuniary  loss  sustained 
by  such  beneficiaries.33 

Joint  Tort  Feasors — Joint  and  Several  Actions. — Where 
two  or  more  physicians  are  jointly  guilty  of  malpractice, 
suit  may  be  brought  by  the  patient  against  all  jointly,  or 
one,  or  any  number  less  than  all,  at  the  option  of  the  pa- 
tient, or  separate  actions  may  be  brought  against  all,  or 
any  number  less  than  all.34  One  practitioner,  however,  is 
not  liable  for  an  injury  inflicted  by  another,  unless  they 
were  partners  or  acted  in  concert  or  co-operation,  and  sev- 
eral will  not  be  liable  for  the  torts  of  one  unless  they  con- 
certed or  co-operated  in  the  negligent  act,  or  unless  their 
combined,  co-operating  conduct  produced  the  resultant 
injury. 


33  Chicago,  etc.  v.  Kelly,   182  111.,  267. 

34  Barnes  v.  Means,   82  111.,  378;  Yeazel  v.  Alexander,   58  111.,  254,  261;   Chicago  v. 
Babcock,   143  111.,  358,   366. 


180  MEDICAL   JURISPRUDENCE. 

INDEPENDENT  ACTS. — Where  the  acts  of  the  practitioners 
are  entirely  distinct  and  separate  as  to  aid,  concert,  advice, 
co-operation  or  countenance,  one  to  the  other,  there  can 
be  no  joint  liability  and  each  will  be  liable  only  for  his  own 
wrong.35 

PHYSICIAN  AND  DRUGGIST. — The  physician  who  writes  a 
prescription  and  carelessly  inserts  a  deadly  drug,  or  too 
large  a  proportion  thereof,  in  view  of  the  prescribed  dose, 
and  the  druggist  who  compounds  it  with  knowledge  of  the 
use  to  which  it  is  to  be  put,  are  jointly  liable  to  the  patient 
for  injurious  consequences,  or  to  the  proper  representative 
in  case  of  the  death  of  the  patient  as  a  result  of  taking  the 
medicine.36 

ASSISTANT  TO  SURGEON. — Where  the  family  physician  is 
present  at  an  operation  and  assists  the  operating  surgeon 
in  minor  ways  but  does  not  exercise  any  discretion  as  to 
the  operation,  and  did  not  have  anything  to  do  with  the 
handling  of  sponges  or  gauze,  he  is  not  jointly  liable  with 
the  operator  who  carelessly  left  gauze  in  the  abdominal 
cavity  after  closing  the  wound.37 

CONTRIBUTION. — Where  a  patient  sues  only  one  practi- 
tioner, or  any  number  less  than  all  who  are  jointly  guilty 
of  malpractice,  those  sued  cannot  require  the  others  to  be 
made  parties  to  the  suit  nor  to  contribute  to  the  payment 
of  the  judgment.38  When  an  action  is  founded  upon  con- 
tract all  parties  liable  are  required  to  contribute  their 
pro  rata  share. 

SATISFACTION. — In  cases  of  this  character,  a  patient  can 
have  but  one  satisfaction  of  his  damages.  If,  for  a  suffi- 
cient consideration,  he  releases  one  of  the  joint  wrongdoers, 
he  releases  all  and,  if  a  judgment  against  one  is  satisfied, 


35  Teazel  v.  Alexander,  58  111.,  254,  262. 

36  Sutton  v.  Wood,   120  Ky.,   23 ;   8  A.  C.,   894 ;   Tumblay  v.  Kimball,   24  A.   C.,   1215, 
1219;  Murdock  v.  Walker,  43  111.  App.,  590. 

37  Brown  v.  Bennett,  157  Mich.,  654. 

38  Bend  v.  R.  R.  Co.,  8  111.  App.,  517,  525;  Reed  v.  Peterson,  91  111.,  288,  297. 


DEFENSES,    DAMAGES,    OTHER   FEATURES.  181 

it  bars  a  prosecution  of  the  others,  or  a  collection  on  the 
judgments.39 

PURCHASE  OF  PEACE — AGREEMENT  NOT  TO  SUE. — An  agree- 
ment not  to  sue  is  not  considered  an  accord  and  satisfac- 
tion, does  not  amount  to  a  release  and,  therefore,  if  given 
to  one  or  more  joint  wrongdoers,  for  a  sufficient  consider- 
ation, does  not  bar  action  against  other  joint  wrongdoers.40 

Survival  of  Action. — In  the  absence  of  statutory  pro- 
visions to  the  contrary,  a  right  of  action  for  malpractice 
does  not  survive  the  death  of  either  patient  or  practitioner, 
and  if  suit  has  been  brought,  it  abates  upon  the  death  of 
either.41 

However,  if  a  partner,  who  is  guilty  of  malpractice,  dies, 
the  right  of  action  survives  against  the  surviving  partner, 
whether  the  latter  contributed  to  the  malpractice  or  not.42 


39  Vigeant  v.   Scully,  35  111.  App.,   44,   47. 

40  Chicago  v.  Smith,  95  111.  App.,  335,  339. 

41  Vittum  v.  Oilman,  48  N.  H.,  416 ;  Boor  v.  Lowrey,  103  Ind.,  468 ;  Wolf  v.  Wall,  40 
O.  St.,  Ill;  Lattimore  v.  Simmons,  13  S.  &  R.,  183. 

42  Hess  v.  Lowrey,  122  Ind.,  225. 


CHAPTEE  XVI. 
CRIMINAL  MALPRACTICE. 

Definition. — Criminal  malpractice  consists  in  doing  acts 
which  show  a  reckless  disregard  of  human  life  or  which 
are  expressly  forbidden  by  statutes  or  denounced  by  the 
common  law,  on  the  part  of  a  physician  in  treating  a  pa- 
tient, by  means  of  which  the  patient  suffers  death  or  un- 
necessary injury.1 

Negligence. 

Criminal  Liability. — In  case  of  gross  negligence  of  a  phy- 
sician, resulting  in  the  death  of  his  patient,  he  may  be 
guilty  of  manslaughter.2  In  order  to  sustain  the  action, 
gross  incompetency  or  reckless  inattention  or  indifference 
must  be  shown.  An  inadvertent  mistake,  a  mere  error  of 
judgment,  an  inability  to  master  unforeseen  conditions  will 
not  be  sufficient  to  predicate  such  liability.3  In  case  of 
criminal  negligence,  where  death  does  not  result,  the  prac- 
titioner will  be  guilty  of  a  misdemeanor.4  The  real  intent 
of  the  physician  is  immaterial.  He  is  presumed  to  intend 
the  reasonable  and  probable  consequences  of  his  acts.5 
Thus,  in  England,  a  physician  has  been  held  criminally 
liable  where  corrosive  sublimate  was  applied  as  a  remedy 
for  cancer  and  as  an  emetic  to  remove  mercury  from  the 
system,  and  where  other  dangerous  and  deadly  medicines, 
as  arsenic  and  lobelia,  were  administered  by  one  ignorant 


1  Tucker  v.  Gillett,  22  O.  Oir.  Ct.,   664,  669. 

2  State  v.  Reynolds,  42  Kan.,  320. 

3  Com.  v.  Pierce,  138  Mass.,  165. 

4  State  v.  Reynolds,  42  Kan.,  320;  Hyatt  v.  Adams,  16  Mich.,  198. 
8  Rex  v.  Simpson,  4  C.  &  P.,  398 ;  Stehr  v.  State,  92  Nebr.,  755. 

182 


CBIMINAL    MALPRACTICE.  183 

of  their  effects.  Mere  error  of  judgment  does  not  consti- 
tute criminal  carelessness.  Eeckless  failure  to  give  proper 
instructions  to  a  patient  as  to  the  use  of  a  dangerous  drug, 
gross  ignorance  of  the  proper  use  of  instruments  or  of  the 
effects  of  dangerous  remedies  employed  and  the  selection 
and  application  thereof  may  constitute  criminal  malprac- 
tice.6 

Abortion. 

Definition. — Abortion  is  the  act  of  miscarrying,  or  pro- 
ducing young  before  the  natural  time;  before  the  foetus  is 
perfectly  formed,  or  able  to  sustain  life. 

To  cause,  procure  or  produce  an  abortion  is,  therefore, 
to  cause,  procure  or  produce  this  premature  bringing  forth 
of  the  foetus. 

Criminal  Abortion. 

At  Common  Law. — Abortion  as  a  crime  is  to  be  found 
only  in  modern  treaties  and  modern  statutes.  No  trace  of 
it  is  to  be  found  in  the  ancient  common-law  writers.7  How- 
ever, the  courts  of  this  country  are  not  agreed  as  to  the 
nature  of  this  act  at  common  law.  In  a  number  of  the 
States  there  are  decisions  to  the  effect  that  "to  produce 
an  abortion  on  a  woman  before  she  is  quick  with  child  and 
with  her  consent"  is  not  to  commit  the  common  law  crime 
of  abortion.  On  the  other  hand,  it  has  been  judicially  de- 
clared in  Pennsylvania  that  "  It  is  a  flagrant  crime  at  com- 
mon law  to  attempt  to  produce  the  miscarriage  or  abortion 
of  a  woman,  because  it  interferes  with  and  violates  the 
mysteries  of  nature  in  the  process  of  which  the  human  race 
is  propagated  and  continued.  It  is  a  crime  against  nature 
which  obstructs  the  fountains  of  life  and  therefore  it  is 
punished.  ...  It  is  not  the  murder  of  a  living  child  which 
constitutes  the  offense  of  abortion,  but  the  destruction  of 


6  22  Am.  &  Eng.  Ency.  Law,  811. 
1  State  v.  Cooper,  22  N.  J.  L.,  52. 


184  MEDICAL   JURISPHUDENCE. 

gestation  by  wicked  means  and  against  nature.  .  .  .  The 
moment  the  womb  is  instinct  with  embryo  life  and  gesta- 
tion has  begun,  the  crime  may  be  perpetrated. " 8  It  is 
perfectly  certain,  by  the  unanimous  concurrence  of  all  the 
authorities,  that  at  common  law,  the  offense  could  not  be 
committed  unless  the  child  had  quickened.  This  seems  to 
be  the  reasonable  and  just  doctrine.9 

Attempt  To  Abort. — The  law  prohibits  not  only  abortion 
when  without  legal  justification  but  also  the  attempt  to 
abort  when  not  legally  necessary. 

Intent. — Intent  to  produce  a  miscarriage,  without  legal 
excuse,  is  a  necessary  element  of  the  offense;  hence  to  as- 
sault and  beat,  in  anger,  a  pregnant  woman,  thereby  caus- 
ing her  to  abort,  does  not  constitute  the  crime  of  abortion.10 
Intent  may  appear  manifest  from  the  character  of  the 
means  employed,  must  be  shown  by  the  circumstances  and 
will  be  presumed  if  the  statutory  elements  of  the  offense 
are  present.11 

Where  a  physician  attended  a  woman  in  premature  con- 
finement, to  which  he  in  no  way  contributed,  and  removed 
the  foetus  by  force,  he  was  held  not  liable  criminally  under 
the  provisions  of  the  statute  of  Illinois.12  That  the  de- 
fendant was  the  father  of  the  child  is  competent  evidence 
to  show  the  motive  for  an  attempt  to  produce  an  abortion.13 

Without  the  Woman's  Consent. — The  use  of  violence 
upon  a  woman,  with  intent  to  produce  her  miscarriage, 
even  before  quickening,  without  her  consent,  is  an  assault 
highly  aggravated  by  such  wicked  purpose  and  is  indictable 
at  common  law.14 


8  Mills  v.  Com.,   13   Pa.  St.,   630. 

9  State  v.  Slagle,  83  N.  C.,  630 ;   People  v.  Sessions,  58  Mich.,   594 ;   Smith  v.  Gafford, 
31  Ala.,  45;  State  v.  Atwood,  54  On.  526;  21  A.  C.,  516,  522. 

10  Slattery  v.   People,    76   HI.,    217. 

11  State  v.  Glass,  5  Ore.,  73. 

12  Honnard  v.  People,  77  HI.,  481. 

13  Scott  v.   People,   141  111.,   195. 

i*  Com.  v.  Parker,  9  Mete.   (Mass.),  263;  Smith  v.  State,  33  Me.,  48;  State  v.  Cooper, 
22  N.  J.  L.,  52. 


CRIMINAL    MALPRACTICE.  185 

Of  course,  the  consent  of  the  woman  does  not  relieve  the 
act  of  its  criminality  under  the  statutes  or  at  common  law.15 

Knowledge  of  Pregnancy. — An  intent  to  commit  an  abor- 
tion may  exist  without  an  absolute  knowledge  of  preg- 
nancy.16 

Pregnancy  Not  Necessary  to  Attempt  to  Abort. — Under 
some  statutes  which  do  not  specify  a  pregnant  woman,  an 
attempt  to  cause  abortion  may  be  committed  on  a  woman, 
even  though  she  is  in  fact  not  pregnant.  The  offense  is 
considered  complete  when  the  overt  act  is  committed  with 
the  specific  criminal  intent.11 

Means  Employed. — Where  the  intent  to  commit  an  abor- 
tion exists,  the  means  employed  are  usually  not  material. 
Thus,  where  a  party  has  a  pregnant  woman  under  his  con- 
trol and  induces  her  to  indulge  in  excessive  and  violent 
exercise  with  the  intent  thereby  to  produce  an  abortion, 
and  such  result  follows,  he  is  guilty  of  the  offense.18 

Failure  to  Produce  Abortion. — The  fact  that  the  efforts 
of  the  defendant  were  barren  of  results  and  the  contem- 
plated miscarriage  was  not  effected,  has  no  bearing  upon 
the  guilt  of  the  accused  when  charged  with  an  attempt  to 
abort,  since  the  actual  abortion  is  not  necessary  to  the 
consummation  of  the  offense.19 

Advice  to  Procure  Abortion. — Ordinarily,  mere  advice  to 
a  pregnant  woman  to  take  medicine  to  bring  about  a  mis- 
carriage, or  to  undergo  an  operation  for  that  purpose, 
without  any  overt  act  or  assistance,  will  not  render  the 
advisor  guilty  of  the  offense  denounced  by  the  statute.20 
However,  owing  to  the  language  of  some  statutes,  mere  ad- 

15  State  v,  Moore,  25  la.,  128;  Com.  v.  Snow,  116  Mass.,  47. 

16  Powe  v.  State,  48  N.  J.  L.,  34. 

17  Powe  v.   State,  48  N.  J.  L.,   84;   Com.  v.   Surles,   165  Mass.,   59;   Eggart  i>.   State, 
40  Pla.,  527. 

18  1  Cyc.,   170. 

19  Smith  v,  'State,  33  Me.,  48;  Willingham  v.  State,  33  Tex.  Grim.,  98;  State  v.  Owens, 
22  Minn.,  238. 

20  People  v.  Phelps,  133  N.  Y.,  267. 


186  MEDICAL    JUKISPEUDENCE. 

vice  and  information  are  considered  as  completing  the 
offense  of  attempt,  without  any  overt  act.21 

Proof  of  Pregnancy. — Where  the  statute  designates  a 
pregnant  woman  or  a  woman  pregnant  with  child,  the  preg- 
nancy of  the  woman  in  question  must  be  proven  beyond  a 
reasonable  doubt,  but  not  with  absolute  certainty, — such 
reasonable  certainty  as  shall  silence  all  reasonable  doubt 
is  sufficient.22  If  the  pregnancy  is  admitted  and  the  de- 
fense offered  is  that  the  foetus  was  dead  at  the  time  of  the 
operation,  the  burden  is  upon  the  defendant  to  introduce 
some  evidence  to  establish  that  fact,  on  the  ground  that 
life  once  existing  is  presumed  to  continue.23 

Stage  of  Pregnancy. — Where  the  statutes  make  preg- 
nancy of  the  woman  an  ingredient  of  the  offense,  without 
specifying  the  stage  of  gestation,  the  crime  may  be  com- 
mitted at  any  time  after  conception  and  before  complete 
parturition.24 

Period  of  Pregnancy. — Pregnancy  begins  with  conception 
and  ceases  when  the  foetus  has  come  forth  from  the  womb, 
even  though  it  is  still  attached  by  the  umbilical  cord,  and 
though  the  afterbirth  has  not  been  removed.25 

Existence  of  Pregnancy. — Pregnancy  may  be  shown  by 
conduct,  statements  and  probative  circumstances,26  and  it 
need  not  be  proven  that  the  foetus  was  alive  at  the  time  and 
in  the  course  of  nature  would  have  matured  into  a  human 
being.27  If  the  foetus  was  dead,  such  fact  is  a  defense. 

Evidence. — The  mere  fact  that  treatment  was  followed 
by  expulsion  of  the  foetus,  does  not  establish  the  offense, 
but  is  a  fact  to  be  taken  into  consideration.  A  denial  by 


21  State  v.  Murphy,   27  N.  J.  L.,   112. 

22  State  v.  Stafford,  145  la.,  285 ;  Fitch  v.  People,  45  Colo.,  298 ;   State  v.  Lilly,  47  W. 
Va.,  496. 

23  Com.  v.  Reid,  8  Phila.   (Pa.),  385,  400. 

24  State  v.  Fitzgerald,  49  la.,  260. 

25  Com.   v.   Brown,    14   Gray    (Mass.),   415. 
20  State  v.  Alcorn,  7  Idaho,  599. 

27  Com.  v.  Surles,   165  Mass.,  59. 


CRIMINAL   MALPRACTICE.  187 

the  woman  that  she  had  been  .criminally  aborted  will  not 
defeat  a  prosecution,  and  often  is  entitled  to  but  little  con- 
sideration in  the  light  of  other  facts  and  circumstances. 
However,  she  is  not  usually  considered  an  accomplice.28 

KES  GEST.E. — Letters,  statements  and  conduct  of  the 
woman  so  closely  connected  in  time  and  substance  with  the 
facts  and  conduct  alleged  as  to  be  a  part  of  the  res  gestce, 
are  admissible  in  a  prosecution  of  a  physician  for  causing 
the  abortion.29 

CIRCUMSTANTIAL  EVIDENCE. — The  evidence  in  abortion 
cases  is  almost  exclusively  circumstantial,  and  the  question 
of  admissibility  of  collateral  facts  is  often  determined  by 
the  nature  of  the  case  under  consideration.  The  tendency 
is  to  permit  the  evidence  to  cover  a  wide  range  of  subjects 
and  to  admit  in  evidence  any  fact  which  has  a  bearing  on 
any  issue  in  the  case.30 

It  is  proper  to  show  that  the  physician  accused  held  him- 
self out  as  able  and  willing  to  assist  women  in  producing 
miscarriages,  when  evidence  has  been  introduced  tending 
to  show  the  commission  of  the  offense,  or  where  the  phy- 
sician admits  the  act  and  attempts  to  justify  it  on  the 
ground  of  necessity,  because  such  holding  out  tends  to  show 
his  intent  and  characterizes  the  act.31 

OPINION  EVIDENCE. — The  opinions  of  medical  experts  are 
admissible  to  prove  that  an  abortion  had  been  performed 
on  a  woman,  the  nature  and  effect  of  drugs,  treatments  and 
instruments,  the  stage  to  which  pregnancy  had  advanced 
at  the  time  of  the  expulsion,  and  other  pertinent  matters  of 
a  medical  character.  But  the  opinion  of  the  woman  as  to 


28  People  v.  Vedder,   98   N.  Y.,    630;    Com.   v.  Boynton,    116   Mass.,    343;    Smartt  v. 
State,  112  Tenn.,  539;   State  v.  Smith,  99  la.,  26;   Seifert  v.  State,   160  Ind.,  464. 

29  State  v.  Dickinson,   41  Wis.,   299 ;    Solander  v.  People,   2  Colo.,   48 ;    State  v.   Ryder, 
80  Vt.,  422. 

30  Clark  v.  People,  224  111.,  554,  562;   People  v.  McGonegal,  136  N.  Y.,  62;   Diehl  v. 
State,  157  Ind.,  549. 

81  Clark  v.  People,   224  111.,   554;   People  v.  Sessions,   58  Mich.,   594;   Clark  v.  Com., 
Ill  Ky.,  443. 


188  MEDICAL   JURISPRUDENCE. 

the  effect  of  the  drugs  taken  or  treatments  administered 
is  not  admissible.32  Of  course,  she  can  testify  as  to  what 
followed  the  treatment  or  administrations,  but  she  cannot 
state  that  such  conditions  were  the  result  of  the  treatment 
or  operation.33 

Statutes. — This  subject  is  now  regulated  by  statute. 
The  same  general  purpose  is  aimed  at  by  all  legislation 
and  the  provisions  are  substantially  similar.  The  statute 
of  Illinois  may  be  taken  as  an  illustration  of  the  spirit  of 
such  laws. 

"Whoever,  by  means  of  any  instrument,  medicine,  drug 
or  other  means  whatever,  causes  any  woman,  pregnant  with 
child,  to  abort  or  miscarry,  or  attempts  to  procure  or  pro- 
duce an  abortion  or  miscarriage,  unless  the  same  were  done 
as  necessary  for  the  preservation  of  the  mother's  life,  shall 
be  imprisoned  in  the  penitentiary  not  less  than  one  year 
nor  more  than  ten  years ;  or  if  the  death  of  the  mother  re- 
sults therefrom,  the  person  procuring  or  causing  the  abor- 
tion or  miscarriage  shall  be  guilty  of  murder. ' ' 34 

Necessary  to  Save  the  Mother's  Life. — BURDEN  OF 
PROOF. — All  statutes  except  from  their  prohibition  cases 
when  the  delivery  is  necessary  to  save  the  mother's  life, 
the  exception  being  expressed  in  slightly  varying  language 
in  different  States.  Ordinarily  the  burden  is  on  the  de- 
fendant to  show  that  his  act  comes  within  the  exception  to 
a  statute.  However,  in  cases  of  abortion,  where  the  statute 
excepts  cases  necessary  to  save  the  mother's  life,  the  ma- 
jority of  the  courts  hold  that  the  burden  is  on  the  prosecu- 
tion to  prove  the  absence  of  such  necessity  for  the  oper- 
ation.35 Even  if  the  exception  did  not  appear  in  the 


32  State  v.  Baldwin,  79  la.,  714;  King  v.  State,  35  Tex.  Grim.,  472. 
SSNavarro  v.  State,  24  Tex.  App.,  378;   People  v.  Olmstead,   30  Mich.,  431. 

34  R.  S.  111.,  Chap.  38. 

35  State  v.  Lee,  69  Conn.,  186 ;  State  v.  Aiken,  109  la.,  643 ;  State  v.  Clements,  15  Ore., 
237;  Moody  v.  State,  17  O.  St.,  110;  State  v.  Meek,  70  Mo.,  355;  Hatchard  v.  State,  79 
Wis.,   357. 


CRIMINAL,   MALPRACTICE.  189 

statute,  doubtless  the  existence  of  the  fact  that  the  oper- 
ation was  necessary  to  save  the  mother's  life,  would  com- 
pletely exonerate  the  physician  and  relieve  him  of  criminal 
liability  in  performing  the  operation  but  the  burden  of 
proving  such  fact  would  be  upon  him.36 

NECESSITY  . — MEANING  OF  THE  TERM. — The  necessity  men- 
tioned in  the  various  statutes,  and  which  as  a  matter  of 
common  law  will  justify  the  operation,  is  intended  to  cover 
only  those  cases  where  the  death  of  the  mother  might  rea- 
sonably be  expected  to  result  from  natural  causes,  growing 
out  of  or  aggravated  by  the  pregnancy,  unless  the  child  is 
destroyed.  Of  course,  it  need  not  appear  that  the  death 
of  the  mother  is  inevitable  and  at  hand  in  the  absence  of 
the  operation.37  However,  the  fact  that  the  woman  has 
threatened  to  commit  suicide  unless  relieved  of  her  child 
is  not  such  a  necessity  as  the  statutes  contemplate  or  the 
common  law  would  recognize.  The  threatened  death  must 
be  the  natural  and  apparent  result  of  existing  conditions.38 
A  desire  to  shield  the  woman  from  ignominy  and  disgrace 
does  not  bring  the  case  within  the  exception,  nor  relieve 
the  act  of  criminality.39 

ADVICE  OF  PHYSICIAN. — Where  a  physician  after  proper 
examination,  in  good  faith,  concludes  that  an  operation  is 
necessary  to  save  the  life  of  the  mother  or  child,  and  his 
diagnosis  and  prognosis  are  concurred  in  by  other  phy- 
sicians, after  independent  investigation,  he  is  justified  in 
acting,  even  though  the  statute  makes  no  provision  for  de- 
termining when  the  necessity  exists,  or  does  not  except  such 
cases.40  The  mere  belief  of  the  operator  that  abortion  is 
necessary,  however  conclusively  established,  is  not  suffi- 


36  State  v.  Fitzporter,  93  Mo.,  390;  Bassett  v.  State,  41  Ind.,  303;   State  v.  Clements, 
15  Me.,   237;   State  v.   Stokes,   54  Vt.,   179. 

37  Beasley  v.  People,  89  111.,  571. 

38  Hatchard  v.  State,  79  Wis.,  357. 

39  Com.  v.  Wood,   11  Gray   (Mass.),  85;  Com.  v.  Snow,  116  Mass.,  47. 

40  People  v.  Johnson,  33  Colo.,  224;  Beasley  v.  State,  89  111.,  572. 


190  MEDICAL   JURISPRUDENCE. 

cient;  the  necessity  must  exist  as  a  matter  of  fact*1  and 
such  conditions  must  be  shown  as  reasonably  to  justify 
such  belief. 

Distinction  Between  Civil  and  Criminal  Malpractice. — 
1.  The  former  is  a  civil,  the  latter  a  criminal  action. 

(a)  The  one  is  brought  by  the  injured  patient;  the  other, 
by  the  State. 

(b)  In  the  first,  the  patient  recovers  for  his  damages;  in 
the  second,  a  fine  is  levied  and  perhaps  imprisonment  in- 
flicted as  a  punishment  for  the  offense. 

(c)  The  civil  is  compensatory,  for  damages  sustained; 
the  criminal  is  remedial  and  punitive  for  the  purpose  of 
preventing  crime. 

2.  The  civil  action  is  based  upon  want  of  skill,  care  or 
good    judgment;    the    criminal    action    has    no    reference 
thereto,  the  act  itself  constituting  the  offense. 

3.  In  the  civil,  the  consent  of  the  patient  usually  is  a 
complete  defense  where  the  fact  (as  consent  to  a  surgical 
operation)  enters  as  an  element  in  issue;  in  the  criminal, 
the  consent  of  the  patient  is  immaterial,  and  merely  makes 
her  a  particeps  criminis. 

4.  The  necessity  for  the  operation  is  not  ordinarily  a 
defense  to  a  civil  suit;  whereas,  in  a  criminal  action,  the 
necessity  of  the  operation  to  save  the  life  of  the  mother  is 
a  complete  defense  under  our  statute. 


41  Hatchard  v.  State,   79  Wis.,  357. 


CHAPTEK  XVII. 

FALSE  REPRESENTATIONS. 

Fraud. 

Definition. — Any  deceitful  practice  in  depriving  or  en- 
deavoring to  deprive  another  of  property  or  rights  by 
means  of  some  artful  device,  trickery,  chicanery,  contriv- 
ances, stratagem  or  plan  contrary  to  the  plain  rules  of 
common  honesty,  is  fraud.1 

Fraud  may  be  said  to  consist  in  deception  intentionally 
practiced  upon  another  to  induce  him  to  part  with  his  prop- 
erty or  to  surrender  some  legal  right  or  claim,  and  which 
deception  accomplishes  the  end  designed.2  The  fraud 
which  gives  rise  to  an  action  of  deceit  exists  where  a  person 
makes  a  false  representation  of  a  material  fact  susceptible 
of  knowledge,  knowing  it  to  be  false,  or  as  of  his  own  knowl- 
edge, when  he  does  not  know  whether  it  is  true  or  false, 
with  the  intention  to  induce  the  person  to  whom  it  is  made, 
in  reliance  upon  it,  to  do  or  refrain  from  doing  something 
to  his  pecuniary  hurt,  when  such  person,  acting  with  rea- 
sonable prudence,  is  thereby  deceived  and  induced  to  do  so, 
or  refrain,  to  his  damage.3 

Effect. — Fraud  vitiates  everything  it  touches  and  makes 
voidable  every  contract  it  induces. 

Intent. — A  fraudulent  intent  or  design  is  necessary  in 
order  to  predicate  a  right  of  action.  Where  the  statement 
is  made  or  the  opinion  expressed  with  knowledge  of  its 
falsity,  or  recklessly  without  any  knowledge  of  its  truth 


1  Mitchell  v.  Kintzer,  5  Pa.  St.,  216,  219. 

2  Judd  v.  Weber,  55  Conn.,  267,  277. 

3  20  Cyc.,  10. 

191 


192  MEDICAL   JUKISPEUDENCE. 

or  falsity,  and  as  a  positive  assertion  calculated  to  convey 
the  impression  that  the  speaker  knows  or  believes  it  to  be 
true,  a  fraudulent  intent  will  always  be  inferred.  Where 
the  statement  or  opinion  was  false  and  material,  and  the 
party  when  he  made  it  knew  that  it  was  false,  or,  not  know- 
ing whether  it  was  true  or  false  and  not  caring  what  the 
effect  might  be,  made  it  in  reckless  -disregard  of  the  facts, 
and  paying  no  heed  to  the  injury  which  might  ensue  to  the 
other  party,  a  fraudulent  intent  will  be  presumed.4  An 
honest  error  of  judgment  is  not  sufficient  to  predicate  a 
charge  of  fraud  because  the  wrongful  intent  is  wanting.5 
Where  an  opinion  is  recklessly  made,  however,  a  fraudulent 
intent  may  be  presumed.6 

Corrupt  Motive. — There  need  not  be  a  corrupt  motive  of 
gain  nor  a  wicked  motive  of  injury  to  predicate  an  action 
of  deceit,  although  the  former  is  usually  present.  The 
gist  of  fraudulent  representations  is  the  producing,  by 
statement  or  conduct,  of  a  false  impression  upon  the  mind 
of  the  party  to  whom  they  are  made,  with  the  intent  to 
create  such  false  impression,  and,  where  this  result  is  ac- 
complished, the  means  by  which  it  is  consummated,  whether 
by  the  expression  of  a  belief  or  by  the  assertion  of  a  fact, 
are  not  very  material  as  a  matter  of  justice  and  fair  deal- 
ing. A  charge  of  fraud  may  be  based  upon  a  knowingly 
false  expression  of  opinion  by  an  expert,  or  upon  an  ex- 
pression by  an  expert  of  an  opinion  in  utter  disregard  of 
the  facts  and  inconsistent  with  the  honesty  and  good  faith 
of  the  party  expressing  it,  where  the  party  has,  or,  under 
the  law,  should  have  special  knowledge  on  the  subject  not 
possessed  by  the  other  party,  and  where  he  ought  to  be 
able  to  approximate  the  truth.7 


4  Hedin  v.  Institute,   62  Minn.,   146;   Kuntze  v.  Kennady,    147  N.  Y.,    124,   129. 

5  Johnson  v.   Beeney,   9  111.   App.,   64. 

6  Miller  v.   John,   208   111.,    173. 

7  Hedin  v.  Minnesota  M.  &  8.  I.,  62  Minn.,   146 ;  Picard  v.  McCormick,   11  Mich.,  68 ; 
Kost  v.  Bender,   25  Mich.,   515;   Powell  v.  Fletcher,   18  N.  Y.   Supp.,  451   and  19  N.  Y. 
Supp.,  911. 


FALSE   REPRESENTATIONS.  193 

Materiality. — It  must  appear  that  the  representation  of 
fact  or  opinion  was  material  to  the  transaction,  otherwise 
the  court  will  not  attempt  to  give  relief.  If  a  false  repre- 
sentation be  such  that,  had  it  not  been  made,  the  trans- 
action would  not  have  been  entered  into,  then  it  is  material ; 
but  if  it  be  established  or  made  probable  that  the  same 
thing  would  have  been  done  in  the  same  way  by  the  party 
complaining,  if  the  representation  had  not  been  made,  it 
cannot  be  deemed  material.8  The  fact  that  the  statement 
or  opinion  was  intended  to  deceive,  was  of  a  character  cal- 
culated to  deceive  the  party  to  whom  it  was  addressed,  and 
actually  did  deceive,  are  considered  sufficient  to  establish 
its  materiality.9  To  be  actionable  the  representation  must 
be  as  to  a  material  fact,  and  susceptible  of  knowledge. 
Generally  speaking,  if  they  appear  to  be  mere  matters  of 
opinion  or  conjecture,  they  are  not  regarded  as  material.10 

Opinions. — In  ordinary  business  transactions,  the  expres- 
sion of  an  erroneous  or  false  opinion  is  not  considered,  in 
law,  a  false  representation.  Thus,  opinions  of  quality, 
utility,  value,  capability  or  other  generally  recognized 
commercial  attributes  of  an  article  are  not  regarded  as 
statements  of  fact,  within  the  meaning  of  the  law.  A  repre- 
sentation that  a  worthless  medicine  is  a  sure  cure  for 
cholera  is  a  statement  of  a  fact,  not  the  expression  of  an 
opinion,  and  is  actionable  fraud  if  relied  upon.9 

Caveat  Emptor. — Caveat  emptor  is  the  prevailing  doc- 
trine. The  rule  is  based  upon  the  presumption  that  both 
parties  to  the  transaction  are  equally  competent  to  form 
an  opinion ;  that  neither  should  be  misled  by  the  knowingly 
false  or  honestly  erroneous  opinions  of  the  other,  and  that 
as  the  basis  of  the  opinion  is  equally  within  the  knowledge 
of  both,  neither  should  be  deceived  by  the  alleged  mental 


8  McAleer  v.  Horsey,  35  Md.,  439. 

» McDonald   v.    Smith,    139   Mich.,    21;    102    N.    W.,    668. 

10  Hedin  v.  Institute,   62  Minn.,  146. 


194  MEDICAL    JUEISPEUDENCE. 

conclusions  of  the  other.  In  a  great  majority  of  business 
proceedings  this  presumption  is  practically  true,  and 
neither  party  thereto  is  materially  influenced  by  the  opin- 
ions of  his  adversary. 

Actionable  Misrepresentation. — False  representations,  to 
be  the  basis  of  an  action  of  deceit  or  criminal  prosecution, 
must  be  of  a  past  or  present  existing  material  fact.  The 
common  law  did  not  encourage  reliance  upon  a  mere  opin- 
ion of  an  adversary  in  a  business  deal.  Adversary  is  used 
advisedly;  the  common  law  practically  forced  a  vendee  to 
consider  the  vendor  as  an  enemy.  They  were  regarded  in 
the  light  of  duelists  battling  for  advantage.  So  long  as 
the  vendor  confined  himself  to  opinions,  whether  of  quality, 
utility,  value,  capability,  future  usefulness,  productivity, 
salability  or  other  similar  attributes  of  the  article,  he  was 
not  required  to  fix  any  limit  to  his  imagination,  except  the 
credulity  of  the  prospective  buyer;  but  the  harshness  of 
this  doctrine  has  been  somewhat  modified  in  modern  times 
and  the  more  equitable  doctrine  of  the  civil  law  is  gradually 
shaping  a  new  attitude  of  the  courts  toward  the  subject.11 

Peculiarity  of  the  Relation. — We  are  readily  convinced 
where  we  want  to  believe.  The  afflicted  are  easily  deceived. 
"With  reference  to  their  ailments  they  grasp  at  phantoms, 
pursue  the  will-o'-the-wisp  and  cling  to  an  offer  of  relief 
with  the  tenacity  of  a  delusion.  Money  has  little  signifi- 
cance except  as  a  means  to  a  restoration  to  health.  The 
invalid  is  readily  persuaded  to  spend  his  substance  for 
remedies  which  do  him  no  good.  Treatment,  like  religion, 
is  taken  on  faith  and,  once  the  patient  is  convinced,  he  be- 
comes the  dupe  of  the  most  arrant  imposter.  In  any  event 
he  can  know  the  value  of  the  treatment  only  by  results  and 
in  the  meantime  his  money  is  being  wasted.  The  causes 


11  Hicks  v.  Stevens,  121  HI.,  186;  Hedin  v.  Minn.  Med.  &  Surg.  Institute,  62  Minn., 
146. 


FALSE   EEPEESENTATIONS.  195 

which  lead  to  health  and  disease  are  often  obscure  and 
elude  even  the  trained  mind  of  the  honest  and  faithful  prac- 
titioner. How  easy,  therefore,  for  the  dishonest  practi- 
tioner to  persuade  his  victim  to  continue  treatments  until 
his  substance  is  squandered  and  he  is  impoverished.  The 
dishonest  practitioner  is  the  meanest  of  confidence  men. 
The  field  of  opportunity  is  great  and,  sorry  commentary 
though  it  be,  it  must  be  admitted  that  the  opportunity  has 
been  well  improved. 

Trust  and  Confidence. — The  relation  of  physician  and  pa- 
tient necessarily  imposes  a  large  degree  of  trust  and  confi- 
dence on  the  part  of  the  patient  and  should  require  the 
utmost  good  faith  and  fair  dealing  on  the  part  of  the  prac- 
titioner. The  law  justifies  a  patient  in  relying  upon  the 
representations  of  his  physician  as  to  the  nature  of  his 
malady,  the  curability  thereof,  the  character  of  treatment 
necessary  and  the  ability  of  the  physician  to  afford  relief. 
If  a  practitioner  is  required  by  his  patient  to  give  an  un- 
qualified opinion  as  a  condition  precedent  to  his  employ- 
ment to  treat  the  patient,  he  must  use  reasonable  and  ordi- 
nary skill  and  care,  and  his  best  judgment;  and  exercise 
good  faith  and  the  strictest  honesty,  eliminating  all  selfish 
considerations  in  forming  and  expressing  that  opinion. 
In  such  manner  only  can  he  discharge  his  full  legal  duty  in 
this  respect.  The  reposing  of  faith  and  confidence  by  one 
party  in  another  and  the  justification  thereof  in  the  law, 
are  important  elements  in  an  action  of  deceit.12  The  law 
does  not  assume  to  safeguard  every  confidence,  and  cannot 
undertake  to  right  every  abuse  thereof,  since  these  elements 
enter  into  every  business  and  social  transaction.  In  the 
eyes  of  the  law  there  are  only  two  general  classes  of  peo- 
ple,— (a)  the  legally  competent,  and  (b)  the  legally  incom- 
petent. The  legally  competent  are  all  put  on  substantially 


12  Clodfelter  t>.  Hulett,  72  Ind.,  137. 


196  MEDICAL   JURISPEUDENCB. 

the  same  plane ;  they  are  treated,  in  the  law,  as  though  they 
were  absolutely  equal  in  mental  ability,  experience  and  de- 
velopment. The  man  with  ten  talents  is  under  no  different 
or  greater  obligation  by  reason  of  that  fact  than  the  man 
who  has  one  talent.  There  are  certain  relations,  however, 
in  which  the  law  takes  cognizance  of  the  fact  that  the  par- 
ties thereto  are  not  on  an  equality;  that  one  of  the  parties 
holds  a  dominant  position;  that  the  origin  of  the  special 
relation  is  due  to  the  superior  knowledge  and  ability  of  the 
one  over  the  other  in  the  subject  matter  involved;  that  a 
degree  of  special  faith  and  confidence  is  essential,  or  at 
least  important,  to  successful  results  from  the  efforts  put 
forth  in  that  behalf,  and  that  the  general  welfare  requires 
that  the  utmost  good  faith  be  exacted  of  the  dominant 
party,  and  that  the  other  party  be  encouraged  to  repose 
faith  and  confidence  in  the  superior.  These  considerations 
have  special  application  to  the  medical  profession.  Why 
should  the  practitioner  be  permitted  to  say  that  his  patient 
should  not  have  believed  him,  or  that  the  patient  should 
have  doubted  or  questioned  his  motives? 

Confidential  Relations  and  Special  Knowledge. — An  opin- 
ion, however,  may  be  a  sufficient  basis  for  an  action  of 
deceit,  under  proper  conditions  of  subject-matter  and  rela- 
tion of  parties.  Introduce  a  confidential  relation  and  the 
reason  for  the  rule  of  caveat  emptor  ceases.  Where  the 
disparity  is  great,  the  expression  of  an  opinion  may  have 
all  the  consequences,  and  should  have  all  the  legal  responsi- 
bilities, of  an  assurance  of  a  material  fact.  Where  the 
relation  is  in  its  nature  confidential,  and  the  subject-matter 
is  a  profession  requiring  special  knowledge  and  skill,  and 
the  party  expressing  the  opinion  is  a  practitioner  therein, 
while  the  one  to  whom  the  opinion  is  conveyed  is  not  versed 
in  the  profession  but  is  actuated  by  self-interests  to  believe 
the  statements,  the  assurance  of  a  belief  may  be  sufficient 


FALSE   BEPRESENTATIONS.        -  197 

in  itself  to  induce  and  control  the  conduct  of  the  party  to 
whom  it  is  communicated,  and  the  practitioner  should  be 
held  to  the  strictest  accountability  for  the  honesty,  disin- 
terestedness and  practical  accuracy  thereof.  The  patient 
may  have  no  means  of  testing  the  truth  of  the  opinion  of 
the  practitioner  or  the  good  faith  of  its  utterance.  Where 
one  of  the  parties  to  a  transaction  possesses  special  learn- 
ing and  skill  not  possessed  by  the  other  on  the  subject  with 
respect  to  which  the  opinion  is  given  and  which  is  the  sub- 
ject of  the  relation,  and  where  the  other  party  is  justified 
in  believing  that  such  opinion  can  and  ought  to  be  an  ap- 
proximation to  the  truth,  and  the  relation  is  such  as  to 
justify  a  reliance  by  the  one  on  the  good  faith  and  ability 
of  the  other,  an  action  of  deceit  may  be  predicated  for  the 
false  or  reckless  statement  thereof,  when  deception  is  in- 
tended and  damage  results  in  reliance  thereon.  Of  course, 
this  does  not  mean  that  a  practitioner  cannot  express  an 
opinion  except  at  his  peril,  nor  communicate  his  belief 
without  being  liable  for  deceit,  if  it  turns  out  to  be  wrong. 
We  are  considering  only  his  good  faith  in  reference  thereto. 
He  cannot  use  a  professed  opinion  as  a  vehicle  to  entrap 
and  defraud  his  patients.  He  must  not  pretend  to  have  a 
conviction  which  he  does  not  hold,  nor  make  capital  out  of 
an  opinion  which  he  cannot  honestly  possess.13 

False  Pretenses. — It  is  a  fraud  for  a  practitioner  to  pre- 
tend, to  the  detriment  of  his  patient,  that  he  can  cure  or 
alleviate  a  disease  when  he  knows  he  cannot;  or  that  his 
patient  is  improving,  when  he  knows  or  ought  to  know  that 
the  trouble  is  not  being  relieved;  or  that  he  understands 
the  nature  of  the  malady  when,  in  fact,  he  is  ignorant 
thereof.  In  all  these  cases,  the  law  should  charge  knowl- 
edge, where  the  practitioner  with  the  application  of  ordi- 


13  Hedin  v.  Minnesota  Med.  &  Surg.  Institute,   62  Minn,,   146;  Hicks  v.  Stevens,  121 
111.,  186, 


198  MEDICAL    JURISPRUDENCE. 

nary  skill  and  care,  and  the  exercise  of  good  judgment, 
ought  to  have  known.  If  he  finds  he  cannot  help  his  pa- 
tient he  must  advise  him  of  that  fact.14  He  owes  this  duty 
of  informing  his  patient  for  two  reasons,  (a)  that  the  pa- 
tient may  determine  whether  he  wants  to  continue  the 
services,  and  (b)  that  the  patient  may  seek  relief  elsewhere, 
if  he  desires. 

MISSTATING  IMPROVEMENT. — Where  a  practitioner,  know- 
ing that  he  cannot  cure  an  ailment  or  relieve  a  trouble,  and 
concealing  such  prognosis  from  the  patient,  persuades  the 
latter  to  take  or  continue  a  course  of  treatment  and,  during 
the  progress  of  the  treatment,  encouraging  him  to  believe 
that  he  is  improving  satisfactorily,  well  knowing  that  his 
assurance  is  false  and  that  the  patient  is  relying  upon  his 
statements,  he  is  guilty  of  such  fraud  as  will  defeat  a  re- 
covery for  his  services  in  that  behalf.15 

Fair  Dealing. — If  he  finds  that  he  cannot  cure,  he  must  so 
advise  his  patient,  and  any  concealment  of  his  ignorance  of 
the  patient's  disease,  or  of  his  inability  to  afford  relief, 
while  at  the  same  time  encouraging  the  patient  to  continue 
the  services,  is  a  gross  fraud  on  the  part  of  the  practitioner 
and  ought  to  defeat  his  right  of  recovery  for  such  services, 
if  indeed  it  ought  not  to  be  attended  by  more  serious  conse- 
quences.16 Even  though,  because  at  the  inception  of  the 
treatment,  the  physician  did  not  know  that  his  method 
would  be  ineffective,  he  might  be  justified  in  undertaking 
the  case,  still,  if,  during  the  progress  of  the  treatment,  he 
discovered  that  he  could  do  the  patient  no  good,  or,  by  the 
exercise  of  the  care  and  skill  required  of  him,  he  could  have 
discovered  such  fact,  but  did  not,  or,  if,  having  discovered 
it,  he  concealed  the  same  from  the  patient  and  encouraged 
him  to  continue  the  treatment  and  accept  the  services,  then 


i*  Chase  v.  Heaney,  70  HI.,  268. 
is  Logan  v.  Field,  75  Mo.  App.,  594. 
i«  Chase  v.  Heaney,  70  111.,  268. 


FALSE    REPRESENTATIONS.  199 

unquestionably  he  ought  not  to  recover  any  compensation 
therefor,  after  the  discovery  that  his  treatment  would  be 
ineffectual,  or  after  he  could  have  discovered  its  want  of 
efficacy  by  the  exercise  of  reasonable  skill  and  care. 

While  the  responsibility  of  practitioners  is  not  based 
upon  the  result  of  their  remedies,  they  owe  their  patients 
the  highest  degree  of  fairness  and  good  faith  and  they 
must  not  be  guilty  of  any  deception  or  indirection  to  the 
detriment  of  their  patients.17 

False  Advertisements. — False  advertisements  in  news- 
papers or  by  circulars,  intended  for  the  public,  and  solicit- 
ing patronage,  when  acted  upon  by  a  party  to  his  damage, 
may  be  grounds  for  an  action  of  deceit.18  The  advertiser 
need  not  know  that  the  patient  saw  the  advertisement  and 
has  acted  upon  the  information  obtained  therefrom,  and  he 
need  not  have  made  any  personal  representations  to  the 
patient. 

As  to  Third  Party. — False  statements  as  to  the  curability 
of  a  malady,  method  of  treatment,  and  the  ability  of  a  third 
party  to  cure  the  same,  when  made  with  intent  to  defraud 
and  when  acted  upon  to  his  damage  by  a  patient,  in  good 
faith  believing  them  to  be  true,  may  be  sufficient  to  predi- 
cate an  action  for  deceit  against  the  party  making  them, 
by  the  party  thereby  defrauded.19 

Illustrations  of  the  Principle. — In  a  certain  case  the  pa- 
tient, who  was  an  illiterate  man,  had  previously  been  perma- 
nently injured  in  an  accident  which  left  him  a  physical 
wreck.  He  consulted  with  the  physician  in  charge  of  an 
Institute  as  to  his  condition,  the  probability  of  his  recovery 
and  their  ability  to  give  him  relief.  The  injury  which  he 
had  received  was  a  fracture  at  the  base  of  the  skull,  and  it 
occurred  about  a  year  before  the  conference  with  the  phy- 


17  Logan  v.  Field,   75   Mo.  App.,   584,   601. 

is  Warfield  v.  Clark,  118  la.,  69. 

19  Hedin  v.  Institute,   62   Minm.,    146;   Kenner  v.  Hardin,   85  111.,   264. 


200  MEDICAL   JURISPRUDENCE. 

sician.  The  evidence  warranted  the  jury  in  finding  that  his 
injuries  were  incurable  and  that  any  honest  physician,  hav- 
ing the  history  of  the  case  before  him,  must,  after  a  proper 
examination,  have  come  to  that  conclusion.  The  evidence 
tended  to  show  that  after  an  examination  the  physician 
positively  assured  the  patient  that  he  could  be  cured,  and 
that  by  treatment  at  the  Institute  he  would  be  made  sound 
and  well  again.  Belying  upon  these  representations,  and 
believing  them  to  be  true,  the  patient  was  induced  to  enter 
into  a  written  agreement  obligating  himself  to  pay  the  sum 
of  five  hundred  dollars  for  the  treatment.  It  appears  from 
the  opinion  of  the  court  that  the  written  contract  did  not 
guarantee  a  cure  or  promise  that  the  patient  would  be  re- 
stored to  good  health,  or  even  assure  him  of  any  relief,  but 
merely  obligated  the  institution  to  give  him  the  treatment. 
He  paid  his  money,  took  the  treatment  but  was  not  cured. 
After  learning  his  real  condition  he  brought  an  action 
against  the  institute  and  the  physician  to  recover  the  fee 
paid,  on  the  ground  that  he  was  induced  to  enter  into  the 
contract  and  pay  his  money  to  the  defendants  by  means  of 
false  and  fraudulent  representations.  To  maintain  his 
action  it  was  incumbent  on  the  patient  to  prove  that  his 
malady  was  incurable ;  that  the  defendants  represented  that 
he  could  be  cured  and  that  they  would  cure  him;  that  they 
knew  or,  if  skillful  and  honest,  should  have  known  that  such 
representations  were  false;  that  they  were  not  the  expres- 
sion of  an  honest  opinion,  based  upon  a  proper  investiga- 
tion, but  were  either  fraudulently  made  with  knowledge  of 
their  falsity,  or  were  uttered  with  a  reckless  or  ignorant 
disregard  of  facts,  and  of  the  interest  of  the  patient;  that 
the  patient  did  not  know  their  falsity  but  believed  them  to 
be  true;  that  in  reliance  thereon  he  entered  into  the  con- 
tract and  parted  with  his  money;  that  his  condition  was 
such  that  an  honest  physician  should  have  been  able  to 


FALSE    KEPEESENTATIONS.  201 

approximate  the  truth  and  to  have  known  that  his  malady 
was  incurable.  On  the  trial,  before  a  jury,  the  patient  ob- 
tained a  verdict  and  judgment  for  the  $500  which  he  had 
paid,  and  interest  thereon  from  the  date  of  payment  and, 
on  appeal,  the  judgment  was  affirmed.20  The  honest  prac- 
titioner can  usually  approximate  the  truth  in  his  prognosis 
in  such  cases,  and  the  patient  is  justified  in  relying  upon  his 
opinion  as  being  substantially  correct.  The  law  must  exact 
of  the  practitioner  the  utmost  good  faith  in  this  respect. 
He  dare  not  pretend  to  have  an  opinion  which  he  does  not 
hold,  nor  express  an  opinion  which,  ordinary  skill  and  hon- 
esty should  know  to  be  false.  If  the  expressed  opinion  is 
contrary  to  the  enlightened  judgment  of  the  profession  at 
the  time  and  place,  the  jury  are  warranted  in  concluding 
that  it  was  deliberately  false  and  that  the  practitioner  knew 
he  could  not  accomplish  the  results  stated  and,  therefore, 
that  the  representations  and  promises  were  made  for  the 
wrongful  and  deliberate  purpose  of  depriving  the  patient 
of  his  money,  without  giving  the  consideration  anticipated 
by  the  patient  and  promised  by  the  physician. 

Illustration. — In  the  Logan  case  a  physician  brought  an 
action  to  recover  his  fee  for  treatments  and  the  patient  de- 
fended on  the  ground  of  malpractice,  charging  that  the 
physician  knew  he  was  doing  the  patient  no  good,  while 
pretending  to  the  patient  that  he  was  improving.  The  phy- 
sician was  practicing  as  a  specialist  for  diseases  of  the 
nose,  throat  and  ear.  Covering  a  period  of  nine  months 
he  had  previously  given  the  patient  sixty-four  treatments 
for  his  malady,  which  was  an  affection  of  the  nose,  and  had 
received  his  pay  therefor.  It  appears  that  the  treatment 
did  not  do  the  patient  any  good.  Later,  he  returned  for 
treatment,  but  told  the  physician  he  could  not  take  the  same 
unless  he  could  be  cured,  and  the  physician  said  that  he 


20  Hedin  v.  Institute,  62  Minn.,  146. 


202  MEDICAL    JURISPRUDENCE. 

could  not  tell  him  at  that  time,  but  encouraged  him  to  renew 
the  treatments,  which  was  done.  During  the  second  course 
of  treatment  the  physician  frequently  told  the  patient  his 
nose  was  getting  along  beautifully.  In  fact,  however,  he 
was  not  improving  and  the  physician  subsequently  admitted 
such  fact  and  said  that  an  operation  would  be  necessary  in 
order  to  effect  a  cure  or  afford  relief.  Apparently,  the  pa- 
tient refused  to  submit  to  an  operation.  On  refusal  of  the 
patient  to  pay  for  the  treatment,  the  physician  brought  suit 
for  his  fee  and  the  patient,  as  his  defense,  charged  malprac- 
tice, alleging  that  he  had  received  no  benefit  and  that  the 
physician  knew,  or  ought  to  have  known,  that  he  could  not 
help  him.  The  case  went  to  the  Appellate  Court  because  of 
alleged  error  in  the  refusal  of  certain  instructions  asked  by 
the  patient.  It  was  considered  by  the  court  that  if  the 
practitioner,  by  the  exercise  of  that  degree  of  skill  and  care 
which  the  law  exacts  of  him,  might  and  reasonably  ought 
to  have  discovered  (a)  that  the  disease  of  the  patient  was 
incurable,  or  (b)  that  it  was  a  case  that  would  not  yield  to 
the  usual  mode  of  treatment,  or  (c)  that  it  was  probable 
that  the  patient  would  not  be  benefited  by  such  treatment, 
and  yet  failed  to  make  such  discovery,  or,  if  he  made  such 
discovery  and  failed  to  advise  the  patient  thereof,  he  was 
guilty  of  such  negligence  and  bad  faith  as  ought  to  defeat 
his  recovery  for  the  services.  It  was  his  duty  to  act  in  the 
utmost  good  faith  towards  the  patient,  and  if  he  knew  that 
he  could  not  accomplish  a  cure,  or  that  the  treatment 
adopted  by  him  would  probably  not  be  of  any  substantial 
benefit,  it  was  his  duty  to  advise  the  patient  to  that  effect, 
and  a  failure  to  disclose  such  fact  to  the  patient  was  a 
breach  of  his  duty. 

Certainty  of  Proof. — None  of  the  essential  elements  of 
fraud  need  be  established  to  a1  mathematical  certainty ;  in 
fact  such  a  thing  as  mathematical  certainty  cannot  exist  in 


FALSE   REPRESENTATIONS.  203 

the  enforcement  of  the  law.  All  that  courts  and  juries 
usually  have  to  act  upon  is  proof  establishing  belief  to  a 
moral  certainty,  and  moral  certainty  always  admits  the 
possibility  of  error.21 

Elements  of  the  Tort. — The  essential  elements  of  an 
action  of  deceit  brought  by  a  patient  against  a  practitioner 
for  the  expression  of  a  false  or  erroneous  opinion,  or  fraud 
as  a  defense  to  an  action  for  a  fee,  are — 

(a)  The  opinion  must  have  been  communicated  directly 
or  indirectly  by  the  practitioner  to  the  patient ; 

(b)  The  opinion  must,  in  fact,  have  been  false  or  errone- 
ous; 

(c)  The  practitioner  must,  at  the  time,  have  known  it  to 
be  false,  or,  not  knowing  its  truth  or  falsity,  he  must  have 
promulgated  it  under  such  circumstances  as  to  show  a  dis- 
regard for  the  interest  of  the  patient,  and  that  he  ought 
to  have  known  the  approximate  truth ; 

(d)  The  practitioner  must  have  intended  to  deceive  the 
patient ; 

(e)  The  patient  must  have  known  the  falsity  of  the 
opinion ; 

(f)  The  patient  must  have  been  justified,  under  the  cir- 
cumstances, in  believing  the  opinion  to  be  true ; 

(g)  He  must  have  believed  it  to  be  true; 

(h)  He  must  have  relied  upon  it  and  his  conduct  must 
have  been  controlled  by  it ; 

(i)  The  opinion  must  have  materially  induced  the  con- 
duct of  the  patient  in  his  reliance  thereon,  and  it  must 
appear  that  without  it  his  conduct  would  probably  have 
been  different,  but  it  is  not  necessary  that  it  should  have 
been  the  sole  inducement; 

(j)  The  patient  must  have  been  damaged  by  his  reliance 
upon  the  representations.22 


21  Brown  v.  State, — Okl., — ;   132  Pac.,  359. 

22  Hicks  v.  Stevens,  121  111.,  186;  Eaton  v.  Winnie,  20  Mich.,  126. 


204  MEDICAL   JURISPRUDENCE. 

Remedies. — Where  a  patient  has  been  defrauded  by  the 
false  and  fraudulent  representations,  opinions  and  pre- 
tences of  a  practitioner,  into  parting  with  his  money  for 
treatment  which  inevitably  can  do  him  no  material  good, 
he  may,  upon  discovery  of  the  fraud,  bring  an  action  and 
recover  the  money  he  has  paid,  and  any  other  actual  damage 
he  has  sustained.  On  the  other  hand,  if  he  has  made  no 
payment,  but  is  sued  for  a  fee  for  the  treatment,  whether 
the  action  be  based  on  a  contract  induced  by  the  fraud  or 
upon  an  implied  agreement  to  pay  for  the  services,  he  may 
urge  the  deceit  as  a  defense  and,  if  he  establishes  the  same, 
he  will  defeat  the  claim  asserted  against  him  and,  on  proper 
pleadings,  may  even  recover  judgment  for  any  actual  dam- 
ages he  may  have  sustained. 

Damages. — The  treatment  may  not  have  resulted  in  any 
actual  damage  to  the  patient,  and  he  may  have  suffered  no 
loss,  except  the  money  or  other  consideration  with  which 
he  parted  and,  in  that  event,  his  recovery  in  an  action  of 
deceit  would  be  limited  to  the  amount  of  that  consideration. 
If  he  parted  with  money  he  would  be  further  entitled,  in 
some  States,  to  interest  thereon  from  the  date  of  payment 
to  the  time  of  the  judgment.23  If  he  parted  with  property, 
he  can  recover  its  fair  cash  value  as  of  the  date  of  delivery 
to  the  practitioner  and,  in  some  States,  in  addition  thereto, 
he  may  recover  interest  thereon  from  the  date  of  such  de- 
livery to  the  date  of  the  judgment. 


23  Hauk  v.  Brownell,  120  111.,  161. 


CHAPTER  XVIII. 
ANESTHETICS. 

Definition. — Anesthesia  means  a  loss  of  sensibility  to  ex- 
ternal impressions;  in  a  technical  and  restricted  sense,  a 
loss  of  the  sense  of  touch.  Frequently,  however,  it  is  a 
general  term  used  to  denote  all  classes  of  insensibility. 
The  agent  which  produces  anesthesia  is  termed  an  anes- 
thetic; therefore,  an  anesthetic  is  any  remedy  used  to  re- 
lieve pain  or  other  hyperesthetic  condition  of  the  sensory 
nerves. 

Kinds  of  Anesthetics. — There  are  two  principal  groups  of 
anesthetics  when  classified  according  to  the  nature  of  their 
effects : 

1.  Local,  as  affecting  a  restricted  area  or  part  of  the 
body,  and 

2.  General,  as  affecting  the  entire  body. 

Cold  is  one  of  the  most  useful  and  generally  employed 
local  anesthetics.  This  condition  is  now  usually  brought 
about  by  the  use  of  ether  or  ethyl  chlorides,  as  a  spray. 
Local  anesthesia  is  frequently  produced  by  the  use  of 
cocaine,  eucaine,  holocaine  and  orthoform.  Some  of  the 
more  common  general  anesthetics  are  ether,  chloroform, 
nitrous  oxide,  antipyrine,  acetanilid,  etc. 

Effects  of  Anesthetic. — In  cases  of  anesthesia  from  the 
administration  of  a  general  anesthetic  the  following  propo- 
sitions of  fact  may  be  said  to  be  established  by  the  con- 
sensus of  medical  experience  and  opinion : 

1.  Consciousness  of  external  impressions  is  impaired  in 
the  early  stages. 

205 


206  MEDICAL   JUKISPEUDENCE. 

2.  This  impairment  is  progressive. 

3.  The  impressions  which  reach  the  mind  during  the 
progress  of  anesthesia  are  distorted  and  somewhat  per- 
verted. 

4.  Consciousness  of  external  impressions  is  entirely  lost 
in  the  final  stage. 

5.  Voluntary  muscular  movement  is  not  lost  until  the 
final  stage. 

6.  Emotions  of  an  erotic  character  are  sometimes  excited. 

7.  Memory  of  events  occurring  during  the  progress  of 
anesthesia  is  distorted  and  sometimes  wholly  unreal. 

8.  Dreams  are  sometimes  experienced. 

9.  The  impressions  left  by  these  dreams  remain  fixed  in 
the  mind  with  all  the  vividness  of  real  events. 

Right  to  Administer. — The  law  recognizes  the  importance 
of  anesthesia  in  the  science  of  surgery,  and  that  its  use  is 
indispensable  to  the  successful  performance  of  some  oper- 
ations. The  question  of  its  use  in  a  particular  case  is  a 
matter  resting  largely  in  the  sound  discretion  of  the  oper- 
ator. The  welfare  of  his  patient  must  always  be  the  para- 
mount consideration.  A  general  anesthetic  should  not  be 
given  where  a  local  application  will  be  equally  effective  and 
appropriate.  The  right  to  administer  anesthetics,  general 
and  local,  should  be  implied  in  a  medical  degree  from  a 
modern  medical  school,  because  the  court  should  take  judi- 
cial notice  of  the  fact  of  universal  knowledge  that  instruc- 
tion in  the  properties,  effects  and  uses  of  anesthetics  is  an 
indispensable  part  of  the  work  of  all  schools  and  that  infor- 
mation on  the  subject  is  essential  to  equipment  for  the 
profession.  However,  if  the  patient  charges  ignorance  in 
this  respect  and  introduces  any  evidence  tending  to  sustain 
his  charge,  the  operator  would  be  put  to  the  necessity  of 
showing  his  qualifications  and  experience  in  the  premises. 
If  there  is  any  reasonable  justification  in  fact  for  resorting 


ANESTHETICS.  207 

to  the  expedient,  considering  the  nature  of  the  operation 
and  the  condition  of  the  patient,  and  the  patient  desires  or 
consents  to  the  same,  the  practitioner  may  employ  it  in 
connection  with  his  professional  services,  and  he  will  not 
be  answerable  for  untoward  results  merely  by  reason  of  the 
fact  of  having  administered  the  drug.  The  law  indulges  no 
presumptions,  either  of  ignorance  or  skill.  If  the  plaintiff 
alleges  ignorance  in  the  matter  of  administering  the  anes- 
thetic, as  the  basis  of  his  right  of  action,  he  must  prove  his 
allegation  or  lose  his  case.  If  he  offers  no  proof  of  igno- 
rance, there  is  nothing  on  which  to  found  his  charge,  since 
the  law  does  not  presume  that  the  practitioner  was  ignorant. 
If  the  patient  introduces  evidence  tending  to  sustain  his 
allegations,  the  practitioner  must  show  that  the  anesthetic 
administered,  and  the  method  of  administration  were  in 
accordance  with  the  teaching  and  practice  of  the  profes- 
sion at  the  time  and  place.  In  practice,  an  operator  is  not 
likely  to  be  charged  generally  with  being  ignorant.  Such 
an  allegation  might  be  extremely  difficult  to  prove  and,  even 
if  proven  would  avail  the  patient  nothing  unless  he  also 
proved  that,  by  reason  of  that  ignorance,  he  was  injured. 
The  want  of  skill  must  have  been  manifested  in  the  par- 
ticular case.  Ignorance  must  be  translated  into  action  or 
non-action  before  the  patient  can  complain.  The  conduct, 
not  the  ignorance,  is  the  real  ground  of  complaint.  The 
practitioner  may  be  generally  ignorant  and  unskilled  but 
may  do  right  by  chance,  accident  or  mistake.  Why  should 
the  patient  complain?  He  may  be  ever  so  skilled  and  do 
wrong  through  negligence  and,  thereby,  injure  his  patient. 
Why  should  the  patient  not  recover  for  his  injury? 

Selection  of  Anesthetic. — The  operator  must  use  his  best 
judgment,  based  on  his  knowledge,  experience  and  skill, 
after  careful  examination  of  his  patient,  in  selecting  the 
most  appropriate  anesthetic  under  the  circumstances. 


208  MEDICAL   JURISPRUDENCE. 

Chloroform  should  not  be  given  where  there  is  weakened 
heart  action  from  disease,  if  any  other  reasonable  course 
is  available.  Where  there  is  chronic  or  severe  kidney  trou- 
ble an  anesthetic  should  not  be  given  unless  absolutely 
necessary.  An  error  in  these  respects,  resulting  in  injury 
to  the  patient  will  render  the  operator  liable  for  malprac- 
tice, in  event  the  error  was  due  either  to  his  ignorance  or 
to  his  carelessness. 

Duty  to  Administer  Anesthetic. — Failure  or  refusal  to 
administer  an  anesthetic,  where  the  same  was  not  clearly 
and  indispensably  necessary  and  proper,  is  not  even  prima 
facie  basis  for  an  action  for  malpractice.1 

Legal  Responsibility  in  Administering  Anesthetics. — In 
administering  an  ordinary  anesthetic  in  general  use  for  the 
purpose  of  his  professional  duties,  a  practitioner  is  re- 
quired, in  law,  to  anticipate  only  natural,  ordinary,  usual 
and  probable  consequences, — those  results  which,  from  gen- 
eral experience,  may  be  expected.  Conversely,  he  is  not 
answerable  in  malpractice  for  failure  to  anticipate  unusual 
results  arising  from  a  peculiar  condition  or  temperament 
of  his  patient,  of  which,  after  the  usual  diagnosis  with  the 
exercise  of  reasonable  skill  and  care,  under  the  circum- 
stances, he  had  no  knowledge.  Where  the  administration 
of  the  anesthetic  is  necessary  or  proper  for  professional 
purposes,  objection  to  its  administration  not  appearing  or 
being  discoverable  by  skillful  diagnosis,  the  practitioner  is 
not  liable,  in  an  action  for  malpractice  for  resulting  dam- 
ages unless  at  least  two  facts  coexist,  namely : 

1.  That  he  was  guilty  of  negligence  in  reference  to  the 
administration  of  the  anesthetic,  and 

2.  That  the  injury  of  which  the  patient  complains  was 
the  result  of  this  negligence  in  the  use  of  the  anesthetic. 

The  negligence  in  the  administration  of  the  anesthetic 


Dye  v.  Corbin,   69  W.  Va.,   266. 


ANESTHETICS.  209 

may  have  consisted  (a)  in  administering  it  without  suffi- 
cient preliminary  examination,  or  (b)  in  administering  an 
unfit  and  unsuitable  drug,  or  (c)  in  the  unskillful  or  care- 
less manner  of  administration,  or  (d)  in  the  excessive 
amount  given.2 

Extreme  Responsibility  in  Pact. — In  dealing  with  anes- 
thetics, the  practitioner  must  know  that  he  is  using  instru- 
mentalities which  are  dangerous  and  deadly,  and  his  care 
in  diagnosis,  selection  of  drug  and  administration,  must  be 
in  proportion  to  the  risk  involved  to  his  patient.  His  re- 
sponsibility begins  with  the  examination  preceding  the  ad- 
ministration of  the  drug,  and  carelessness  or  ignorance  in 
diagnosis,  resulting  in  the  determination  to  use  the  par- 
ticular drug,  or  to  resort  to  anesthesia,  when  clearly  it 
should  not  have  been  given,  will  make  him  liable  in  mal- 
practice for  resulting  injuries,  and  possibly  for  manslaugh- 
ter, where  the  consequences  are  death.  He  cannot  trifle 
with  the  health  or  life  of  his  patient  and  not  shoulder  the 
responsibility.3 

Value  of  Testimony. — The  fact  that,  during  the  last 
stages  of  anesthesia,  the  mind  is  entirely  lost  to  outward 
impressions,  and  the  entire  sensory  nervous  system  has 
suspended  its  functions,  should  be  sufficient  to  stamp  with 
great  uncertainty  the  statement  of  a  person  as  to  what 
occurred  to  him  during  the  progress  of  anesthesia,  or  while 
under  the  general  influence  of  an  anesthetic,  when  the  state- 
ment is  based  upon  his  alleged  sensations  at  the  time; 
therefore,  when  to  actual  mental  suspension  there  is  added 
possible  hallucinations  and  self-deception  of  a  character 
similar  to  the  alleged  experience,  the  testimony  has  but 
few  elements  entitling  it  to  credit.  Manifestly,  but  little 
reliance  can  be  placed  upon  supposed  impressions  alleged 


2  Bogle  v.  Winslow,  5  Phila.,  136,   139. 

3  State  v.  Baldwin,  36  Kan.,   1. 


210  MEDICAL   JURISPRUDENCE. 

to  have  been  received,  or  experiences  alleged  to  have  oc- 
curred during  the  time.  These  facts  have  an  important 
bearing  on  the  credibility  of  a  female  who  claims  to  have 
been  deflowered  while  under  the  influence  of  a  general 
anesthetic  for  professional  purposes,  and  indicate  that  the 
corroborating  circumstances  should  be  strong  in  order  to 
justify  a  belief  that  the  event  actually  occurred. 


CHAPTER  XIX. 

INSANITY. 
Mental  Faculties. 

Mental  Processes. — There  is  no  rigid  line  of  demarkation 
between  sanity  and  insanity.  The  processes  of  mental  ac- 
tivity are  the  same  whether  sane  or  insane,  although  they 
differ  in  their  origin  as  well  as  in  the  degree  of  their 
intensity. 

Cerebral  Cortex. — To  understand  insanity,  you  must  know 
the  normal  action  of  the  mind,  and  have  some  knowledge  of 
the  physical  basis  of  mental  action.  This  involves  a  study 
and  knowledge  of  the  contents  of  the  cerebral  cortex  and 
its  association  fibers.  The  functions  of  the  contents  of  the 
cerebral  cortex,  briefly  and  generally  stated,  are, — 

A.  INTELLECT. — 

1.  To  receive  impressions  from  the  organs  of  sensation, 
that  is,  conscious  perception. 

2.  To  group  these  impressions  into  a  unit  known  as  a 
concept,  that  is,  conscious  thought. 

3.  To  store  up  these  concepts  or  thoughts. 

(a)  For  future  recollection  and  recognition,  that  is, 
memory. 

(b)  For  gathering  into  novel  combinations,  that  is, 
imagination. 

(c)  For  use  as  a  basis  of  reflection. 

4.  To  express  thought  in  speech  and  action. 

B.  SENSIBILITY  OR  FEELING. — 

5.  To  experience  emotions  which  accompany  mental  ac- 
tivity, that  is,  sensibility  or  feeling. 

211 


212  MEDICAL   JUBISPEUDENCE. 

C.  WILL.— 

6.  To  exert  self-control  over  mental  action,  that  is,  at- 
tention, or  choice.  (Starr.) 

Classification. — The  faculties  of  the  mind  readily  resolve 
themselves  into  the  three  distinct  classes  above  referred  to, 
namely : 

1.  Intellect, 

2.  Sensibility,  or  feeling,  and 

3.  Will. 

To  illustrate, — You  read  the  pages  of  a  book,  and  thereby 
the  thoughts  of  the  author  become  your  thoughts.  This 
is  intellect.  But  you  get  more  than  this  from  the  reading 
of  the  book.  The  thoughts  produced  awaken  in  you  feel- 
ings, emotions  and  mental  instincts.  This  is  sensibility. 

Perhaps  you  derive  still  more  than  this.  The  thoughts 
produced  not  only  awaken  and  arouse  your  sensibility,  but 
you  are  prompted  to  act,  to  do  something,  as  the  result  of 
the  emotion  excited  in  you.  This  constitutes  will. 

If  either  of  these  faculties  is  impaired,  there  will  be  a 
corresponding  derangement  of  the  mind.  If  the  impair- 
ment is  of  sufficient  magnitude,  it  will  amount  to  what  is 
known  as  insanity. 

Intellect  as  above  implied  is  subdivided  into  presentation 
or  Perception,  re-presentation  or  Memory,  and  perhaps 
Recognition.  If  the  re-presentation  is  not  of  exact  previ- 
ous perceptions,  it  is  Imagination. 

CHOICE. — The  free  exercise  of  the  will  presupposes 
choice.  Thus,  in  the  illustration  above  given,  you  deter- 
mined or  intended  to  act  in  a  particular  way.  This  pre- 
supposes a  previous  act  of  mind.  It  might  have  been  so 
instantaneous  as  not  to  be  perceptible  except  upon  reflec- 
tion, but  there  must  have  been  presented  to  your  mind,  pos- 
sibly only  for  an  instant,  the  question, — Shall  I  or  shall  I 
not  do  so  and  so? — and  the  mind  having  exercised  the 


INSANITY MENTAL   FACULTIES.  213 

choice  between  them,  the  executive  will  manifested  itself  in 
accordance  with  that  choice.  Where  there  can  be  no  choice 
there  can  be  no  freedom  of  will,  and  if  the  inability  to 
choose  is  the  result  of  disease  or  a  condition  within  the 
brain  itself,  the  party  is  relieved  from  criminal  responsi- 
bility for  the  resulting  act. 

Functional  Disturbances  and  Mental  Phenomena. — When 
areas  of  cerebral  cortex  are  diseased,  one  or  more  of  the 
cortical  functions  above  named  may  be  impaired,  impeded 
or  suspended,  and  mental  disorder  results.  If  changes  in 
blood-supply  or  in  nutrition  occur,  or  if  disease  affects  the 
entire  cortex,  insanity  may  result,  and  as  a  consequence, 
thought  becomes  illogical;  emotion  becomes  excessive  or 
depressed,  or  arises  without  external  stimulus;  action  is 
irregular  or  purposeless,  and  conduct  is  not  properly  ad- 
justed to  surrounding  circumstances.  In  the  insane  person, 
impressions  from  sense-perceptions  may  be  wrongfully 
interpreted,  giving  rise  to  illusions.  Ideas  may  arise  with- 
out any  sense-perception  at  all,  and  these  false  perceptions 
without  external  origin  in  sensory  experience  are  called 
hallucinations.  A  mistaken  idea  may  be  harbored  by  any- 
one; as,  the  size  or  distance  of  an  object.  Measurement, 
examination  and  calculation  may  convince  the  person  of 
his  error,  and  if  he  is  sane  he  corrects  his  judgment.  The 
insane  man  is  not  affected  by  logical  methods  and  analyses, 
and  retains  his  erroneous  ideas  in  spite  of  demonstration 
and  reasoning. 

A  mistaken  idea  accepted  without  logical  foundation  is 
a  delusion;  if  retained  in  spite  of  demonstration  of  its 
falsity,  it  is  an  insane  delusion. 

The  reader  is  referred  to  standard  medical  works  for  a 
discussion  of  the  medical  aspect  of  the  subject,  its  factors 
and  causes,  forms  and  classification,  signs  and  tests,  etc. 

Progress  of  the  Law. — Law  follows,  but  in  normal  condi- 


214  MEDICAL   JURISPRUDENCE. 

tions  never  precedes  enlightened,  deliberate,  prevailing, 
persistent  public  sentiment.  It  is  the  delayed  expression 
of  public  opinion  on  the  subject  involved.  With  experience 
and  information  our  notions  of  right  and  wrong  change 
and,  therefore,  where  these  changes  are  pronounced,  there 
is  a  continual  conflict  between  enlightened  public  conscience 
and  its  legal  expression.  If  the  law  is  not  changed,  it  be- 
comes a  dead  letter  and  is  relegated  to  the  dominion  of 
innocuous  desuetude.  Out  of  this  fact  of  progression 
springs  most  of  our  so-called  judge-made  law.  This  is  a 
misnomer.  The  judge  does  not  make  the  law,  he  merely 
recognizes  the  manifestation  of  public  conscience,  as  he 
interprets  it.  "If  matters  arise  in  our  law  which  concern 
other  sciences  or  faculties,  we  commonly  apply  for  the  aid 
of  that  science  or  faculty  which  it  concerns;  which  is  an 
honorable  and  commendable  thing  in  our  law,  for  thereby 
it  appears  that  we  don't  despise  all  other  sciences  but  our 
own,  but  we  approve  of  them  and  encourage  them  as  things 
worthy  of  commendation. ' ' 1 

The  attitude  of  the  law  towards  the  insane  is  a  good  illus- 
tration of  the  growth  of  law  in  harmony  with  the  develop- 
ment of  our  knowledge  of  the  subject. 

Insanity  in  Law. 

Presentation. — In  law,  the  question  of  insanity  is  pre- 
sented in  two  phases, — 

1.  In  criminal  law,  as  exonerative  of  what  would  other- 
wise be  criminal  acts,  and 

2.  In  civil  law,  as  incapacitating  a  person  for  ordinary 
business  transactions,  making  contracts,  wills,  etc. 

Definition. — In  legal  contemplation,  insanity  consists  in 
the  lack  of  such  mental  soundness  as  renders  a  person 
criminally  responsible  for  his  acts,  or  capable  of  managing 


Uustice  Saunders  in  Buckley  v.  Thomas,  1  Plowd.,  118   (1553). 


INSANITY MENTAL    FACULTIES.  215 

his  own  business  affairs.  There  is  a  great  difference  of 
legal  opinion  as  to  what  extent  of  disease  or  imperfect  de- 
velopment, and  what,  if  any,  aberrations  of  mind,  not  trace- 
able to  disease  or  imperfect  development  of  the  brain,  con- 
stitute this  degree  of  mental  unsoundness.  The  tendency 
has  been,  and  still  is,  to  enlarge  the  scope  of  the  word  and 
to  extend  the  rules  of  insanity  to  derangements  not  recog- 
nized in  earlier  times  as  a  defense  to  a  charge  of  crime. 
Insanity,  however,  is  not  merely  mental  disorder,  although 
disorder  of  mind  is  always  present:  that  is  to  say,  not 
every  mental  disorder  is  insanity.  Thus,  a  person  who 
cannot  distinguish  between  red  and  green  has  a  mental 
disorder,  but  it  is  not  insanity ;  he  is  merely  color-blind. 

Presumption  of  Sanity. — All  persons  who  have  reached 
the  age  of  discretion  are  presumed  to  be  sane  until  the  con- 
trary is  shown.  The  burden  of  proving  insanity  rests  upon 
him  who  alleges  it.2 

Presumption  of  Continuity  of  Insanity. — Habitual  insan- 
ity having  once  been  established  is  presumed  to  continue 
until  the  contrary  is  shown.3  In  other  words  all  persons, 
in  the  first  instance,  are  presumed  to  be  sane,  but  after 
insanity  is  once  established  by  proof  that  condition  is  pre- 
sumed to  continue.4  When  insanity  is  once  shown  to  have 
existed,  the  burden  of  proving  sanity  rests  upon  the  party 
who  alleges  a  restoration. 

Evidence  as  to  Insanity. — In  the  trial  of  an  issue  of  insan- 
ity, evidence  of  hereditary  taint  is  competent  to  corrobo- 
rate direct  proof  of  the  disease,  but  proof  of  taint  alone 
is  not  sufficient  to  overcome  the  presumption  of  sanity. 
Proof  of  acts,  conduct,  temperament  and  habits  inconsist- 
ent with  the  known  character  and  previous  habits  of  the 


2  Stevens  v.   Shannahan,   160  111.,  330. 

3  Langdon  v.  People,   133   111.,   382. 

4  Titcomb  v.  Vantyle,  84  111.,  381 ;  Ellars  v.  Mossbarger,  9  111.  App.,  122. 


216  MEDICAL    JURISPRUDENCE. 

person  are  competent  in  establishing  insanity,  taken  in 
conjunction  with  surrounding  facts  and  influences.5  It  may 
be  shown  that  the  person  whose  sanity  is  in  question  has 
been  under  and  subject  to  the  influences  of  the  recognized 
causes  of  insanity.  Any  symptoms  of  the  disease  known 
to  the  medical  profession  and  present  in  the  case  may  be 
produced  in  evidence.  Many  of  these  symptoms  are  largely 
medical  in  character,  and  generally  must  be  introduced 
through  medical  men.  Where  the  question  of  sanity  at  a 
particular  time  is  involved,  insanity  prior  or  subsequent  to 
such  time  may  be  shown,  remoteness  merely  affecting  its 
weight.6 

SUICIDE  AS  EVIDENCE. — Suicide  is  not  per  se  even  prima 
facie  evidence  of  insanity  but  the  fact  and  the  circumstances 
may  be  taken  into  consideration  in  determining  the  ques- 
tion.7 

ABSENCE  OF  MOTIVE  FOB  CRIME. — In  criminal  cases,  the 
absence  of  any  apparent  motive  for  the  commission  of  the 
offense  is  a  circumstance  to  be  considered  by  the  jury  in 
connection  with  other  evidence  of  insanity,  and  the  circum- 
stances and  character  of  the  offense,  but,  of  itself,  it  does 
not  prove  insanity.8 

General  Practitioner  is  an  Expert  on  Insanity. — The 
usual  rule  is  that  a  general  practitioner  of  medicine  is  a 
competent  witness  concerning  insanity,  and  that  a  special 
study  of  that  subject  is  not  required. 


8  Smith  v.  Kramer,  5  Pa.  L.  J.,  226;   Snow  *.  Benton,  28  111.,   306. 

6  Dickinson   v.   Barber,   9   Mass.,   225. 

7  22    Cyc.,    1118. 

8  People  v.  Barber,  115  N.  Y.,  475. 


CHAPTER  XX. 

INSANITY. 
In  Criminal  Law. 

Intent. — Non  est  reus,  nisi  meus  sit  rea.  An  evil  intent 
is  a  necessary  element  of  every  criminal  offense. 

"Let  my  disclaiming  from  a  purposed  evil, 
Free  me  so  far  in  your  most  generous  thoughts, 
That  I  have  shot  mine  arrow  o'er  the  house, 
And  hurt  my  brother."  1 

Since  a  criminal  intent  is  an  essential  element  in  every 
crime,  a  person  destitute  of  the  mental  capacity  to  main- 
tain this  intent  cannot  incur  legal  guilt.  The  decisive 
question  is,  and,  in  every  enlightened  system  of  jurispru- 
dence, must  be, — Was  the  person  mentally  capable  of  enter- 
taining a  criminal  intent®  A  person  may  act  without  the 
concurrence  of  a  responsible  will  even  though  he  is  not 
raving,  and  though  he  knows  what  he  is  about  and  lays  and 
executes  plans  with  great  shrewdness  and  sagacity. 

At  Common  Law. — At  common  law  an  insane  person 
could  not  be  convicted  of  any  crime,  not  even  high  treason.2 

Homicide. — In  criminal  law,  the  question  of  insanity  is 
most  frequently  raised  as  a  defense  in  homicide  cases,  and 
the  question  becomes,  What  degree  of  insanity  should  ex- 
onerate the  defendant  from  the  penalty  of  his  act?  Here 
again,  the  history  of  the  law  is  the  history  of  the  progress 
of  knowledge  on  the  subject  of  mental  derangements. 

Tests. — (a)  ABSOLUTE  WANT  OF  REASON. — The  early  Eng- 


1  "Hamlet" :  Act.  V,   Scene  2. 

2  Co.  Inst.  pt.  3,  p.  4. 

217 


218  MEDICAL   JURISPRUDENCE. 

lish  law  applied  what  is  sometimes  denominated  "the  wild 
beast  test,"  and  it  was  expressed  by  Lord  Hale  as  follows: 

"A  man  to  be  exempt  from  punishment  for  an  act  must 
be  totally  deprived  of  his  understanding  and  memory,  and 
must  not  know  what  he  is  doing  any  more  than  an  infant, 
a  brute  or  a  wild  beast."  3  This  is  known  as  Lord  Hale's 
test. 

An  imbecile  who  had  the  intelligence  of  a  child  over  four- 
teen years  of  age  was  held  responsible  for  his  acts. 

(b)  KNOWLEDGE    OF    RIGHT    AND    WRONG    GENERALLY. — 
Later,  the  English  Courts  adopted  the  test, — Had  the  de- 
fendant at  the  time  he  committed  the  act,  the  power  to  dis- 
tinguish right  from  wrong  in  the   abstract.    Both  these 
tests,  however,  have  now  disappeared  from  English  Juris- 
prudence and  may  be  said  never  to  have  been  the  law  in 
this  country. 

(c)  KNOWLEDGE  OF  EIGHT  AND  WRONG  WITH  REFERENCE 
TO  THE  PARTICULAR  ACT. — By  this  test,  the  question  is, — 
Was  the  defendant  at  the  time  of  committing  the  act,  able 
to  distinguish  between  the  right  and  wrong  of  the  particu- 
lar act?    Where  this  is  the  standard,  insanity  is  the  inabil- 
ity to  distinguish  between  right  and  wrong  in  respect  to 
the  act  in  question,  or  inability  to  be  conscious  of  acting 
contrary  to  law.     This  test  substantially  is,  at  present, 
used  in  England  and  in  some  of  the  States  of  the  United 
States. 

(d)  POWER  OF  CONTROL. — This  test  is,  knowledge  of  right 
and  wrong  with  reference  to  the  particular  act,  and  the 
power  to  choose  the  right  and  avoid  the  wrong,  that  is,  the 
power  of  control.    The  characteristic  feature  of  this  test 
is  the  power  of  choice.    By  this  test  the  question  is, — Had 
the  defendant,  at  the  time  of  committing  the  act  in  ques- 
tion, the  ability  to  distinguish  right  from  wrong,  with  refer- 


3  16  State  Trials,  176. 


INSANITY CRIMINAL  LAW.  219 

ence  to  such  act,  and  also  the  power  to  adhere  to  the  right 
and  avoid  the  wrong?  4 

In  the  Hopps  case  above  cited,  the  court  says :  ' '  Where 
a  party  who  is  upon  trial  on  an  indictment  for  murder, 
interposes  the  defense  of  insanity,  the  rule  in  regard  to 
character  and  degree  of  insanity  which  would  demand  an 
acquittal,  is  thus  laid  down:  That  where  it  shall  appear 
from  the  evidence  that  at  the  time  of  doing  the  act  charged, 
the  prisoner  was  not  of  sound  mind,  but  affected  with 
insanity,  and  such  affection  was  the  cause  of  the  act,  and 
that  he  would  not  have  done  the  act  but  for  that  affection, 
he  ought  to  be  acquitted.  But  this  unsoundness  of  mind, 
or  affection  of  insanity,  must  be  of  such  a  degree  as  to 
create  an  uncontrollable  impulse  to  do  the  act  charged,  by 
over-riding  the  reason  and  judgment,  obliterating  the  sense 
of  right  and  wrong  as  to  the  particular  act  done,  or  depriv- 
ing the  accused  of  the  power  of  choosing  between  them." 
(391.) 

The  real  distinction  lies  in  the  power  of  choice. 

"If,  from  the  observation  and  concurrent  testimony  of 
medical  men  who  make  the  study  of  insanity  a  specialty, 
it  shall  be  definitely  established  to  be  true  that  there  is  an 
unsound  condition  of  the  mind  in  which,  though  a  person 
abstractly  knows  that  a  given  act  is  wrong,  he  is  yet,  by  an 
insane  impulse,  that  is  an  impulse  proceeding  from  a  dis- 
eased intellect,  irresistibly  driven  to  commit  it,  the  law  must 
modify  its  ancient  doctrines,  recognize  the  truth  and  give 
to  this  condition,  when  it  is  satisfactorily  shown  to  exist, 
its  exculpatory  effect. ' '  5 

Subjects  of  Inquiry. — According  to  the  enlightenment  on 
the  subject  of  insanity  at  the  present  time,  the  inquiries  to 
be  submitted  to  the  jury  in  every  criminal  trial  where  the 


4  Hopps  v.  People,  31  111.,  385;  Parson  v.  State,  81  Ala.,  577. 

5  State  v.  Falter,  25  la.,  82;  Parsons  v.  State,  81  Ala.,  577. 


220  MEDICAL    JURISPRUDENCE. 

defense  of  insanity  is  interposed,  are,  it  has  been  said,  as 
follows : 

1.  Was  the  defendant  at  the  time  of  the  commission  of 
the  alleged  crime,  as  a  matter  of  fact,  afflicted  with  a  dis- 
ease of  the  mind  so  as  to  be  idiotic,  or  otherwise  insane? 

2.  If  such  be  the  case,  did  he  know  right  from  wrong,  as 
applied  to  the  particular  question? 

If  both  these  are  answered  in  the  negative,  he  is  not 
legally  responsible. 

3.  If  he  did  have  such  knowledge,  he  may,  nevertheless 
be  legally  irresponsible   if  the  two   following  conditions 
concur : 

(a)  If,  by  reason  of  the  duress  of  such  mental  disease, 
he  had  so  far  lost  the  power  to  choose  between  the  right 
and  the  wrong,  and  to  avoid  doing  the  act  in  question,  as 
that  his  free  agency  in  that  respect  was,  at  the  time,  de- 
stroyed, and 

(b)  If  at  the  same  time  the  alleged  crime  was  so  con- 
nected with  such  mental  disease  in  the  relation  of  cause 
and  effect  as  to  have  been  the  product  of  it  solely.6     How- 
ever, the  element  of  power  of  choice  is  not  nominally  recog- 
nized in  many  jurisdictions,  but  in  actual  practice  before 
juries  there  is  but  little  difference  in  results.7 

Instructions  that  if  the. jury  believed  that  (a)  at  the 
time  of  committing  the  alleged  offense,  defendant  was  able 
to  distinguish  right  from  wrong  with  reference  to  the  par- 
ticular act,  and  (b)  capable  of  choosing  to  do  or  not  to  do 
the  acts  constituting  such  crime,  he  could  not  be  acquitted 
on  the  ground  of  insanity,  are  proper.8 

Insane  Delusion. — Where  a  person  is  under  an  insane 
delusion  or  hallucination,  but  is  rational  on  other  subjects, 
the  rule  is  that  he  is  not  responsible  criminally  for  acts 


6  Parsons  v.  State,   81  Ala.,  596;   State  v.  Lyons,   113  La.,  998. 

7  Smith  v.  State,  95  Miss.,  786 ;  22  A.  O.,  23,  36. 

8  Hornisch  v.  People,  142  111.,  620. 


INSANITY CRIMINAL   LAW.  221 

committed  under  the  influence  of  such  delusion  or  halluci- 
nation, where  the  fact  or  state  of  facts  existing  in  his 
imagination  would,  if  actually  existing,  justify  or  excuse 
the  act. 

Delirium  Tremens. — It  is  the  consensus  of  medical  opin- 
ion and  a  common  observation  of  laymen  that  a  person  may 
voluntarily  indulge  in  the  excessive  use  of  intoxicants  to 
such  an  extent  that  he  loses  all  power  of  control  over  the 
habit  and  his  mind  becomes  so  diseased  that  he  cannot  dis- 
tinguish between  right  and  wrong,  and  that  delusions  and 
hallucinations  are  usual  concomitants.  Hence,  when  de- 
lirium tremens  have  seized  upon  the  victim  of  reckless  in- 
dulgence and  he  is  unable  to  distinguish  right  from  wrong, 
with  reference  to  the  particular  act,  or,  knowing  the  act  to 
be  wrong,  is  impelled  by  an  overpowering  delusion  or  hal- 
lucination which  dethrones  reason,  annihilates  rational 
intent,  and  controls  his  power  of  choice  between  doing  or 
refraining  from  doing  the  acts,  he  is  not  criminally  respon- 
sible in  the  premises.9 

Somnambulism  or  Somnambulentia. — Somnambulism  and 
somnambulentia  are  included  under  the  head  of  insanity,  by 
alienists,  and  if  the  person  afflicted  with  either  is  so  far 
unconscious  at  the  time  that  he  does  not  comprehend  the 
moral  character  of  the  act  performed,  or,  if  comprehending 
it,  he  cannot  choose  between  right  and  wrong,  or  if  his  con- 
dition may  be  regarded  as  that  of  a  person  under  an  insane 
delusion,  with  reference  to  the  act  in  question,  he  cannot 
be  held  criminally  responsible  for  his  act.10 

Drunkenness. — Voluntary  drunkenness  is  no  excuse  for 
crime.  However,  where  a  specific  intent  is  necessary  to 
constitute  the  offense  charged,  a  person  who  is  so  far  under 
the  influence  of  liquor,  at  the  time,  as  not  to  know  what  he 


9  State  v.   Driggers,    84   S.   0.,    526;    19  A.   0.,    1166. 

10  Fain  v.  Com.,  78  Ky.,   183;  39  Am.  B.,  213. 


222  MEDICAL   JURISPRUDENCE. 

is  doing  may  be  incapable  of  committing  the  offense.11  If 
voluntary  intoxication  were  permitted  to  excuse  criminal 
acts,  most  premeditated  offenses  would  become  a  matter  of 
history,  because  the  parties  contemplating  them  would  be 
sure  to  prepare  their  defense  beforehand. 

Epilepsy. — Epilepsy  is  not  insanity,  and  proof  of  epi- 
lepsy is  not  sufficient  to  establish  irresponsibility.12  It 
must  be  shown  that  the  trouble  had  so  far  progressed  in 
weakening  the  mind  that  the  subject  was  not  conscious  of 
the  wrongful  character  of  his  act  at  the  time,  or  was  im- 
pelled by  an  overpowering  insane  delusion.13 

Degree  of  Proof  Required. — Where  insanity  is  offered  as 
a  defense  to  a  criminal  act,  and  the  evidence  raises  a  rea- 
sonable doubt  as  to  the  sanity  of  the  defendant,  he  is 
entitled  to  an  acquittal.14  If  any  evidence  has  been  intro- 
duced rebutting  the  legal  presumption  of  sanity,  and  tend- 
ing to  raise  a  reasonable  doubt  of  the  sanity  of  the  defend- 
ant, the  burden  shifts  to  the  prosecution,  which  is  then 
required  to  prove  the  defendant's  sanity  beyond  a  reason- 
able doubt.15  The  plea  of  insanity  is  merely  a  denial  of 
one  of  the  essential  allegations  of  the  indictment,  and  the 
burden  is  not  upon  the  defendant  to  establish  the  same,  but 
if  a  reasonable  doubt  exists  upon  the  whole  evidence  as  to 
defendant's  sanity,  he  must  be  acquitted.16 

Moral  Insanity  is  a  morbid  perversion,  and  sometimes 
accentuation,  of  the  moral  feelings.  As  a  proposition  of 
law,  a  mere  perversion  of  the  moral  faculties  unaccom- 
panied ~by  mental  delusion,  will  not  invalidate  a  civil,  nor 
excuse  a  criminal,  act.  Mere  moral  depravity  is  not  in- 
sanity.17 


11  Chowning  v.  State,  91  Ark.,  503;   18  A.  C.,  529. 

12  Oborn  v.  State,  143  Wis.,  249. 

13  People  v.  Gambacorta,  197  N.  Y.,  181;  18  A.  C.,  425,  428. 

14  Hopp  v.  People,  31  111.,   385,   393. 

15  Dacey  v.  People,   116  111.,   555. 

16  Montag  v.   People,    141   111.,    75. 

17  Goodwin  v.   State,   96  Ind.,   550. 


INSANITY CEIMINAL  LAW.  223 

Irresistible  Impulse  must  not  be  confounded  with  pas- 
sionate propensity  or  willful  temper.  No  matter  how  hot 
the  passion  or  how  furious  the  frenzy,  it  is  not  insanity, 
and  the  question,  in  its  ultimate  analysis,  becomes, — Was 
there  a  disease  of  the  brain? 

Excitement,  anger,  jealousy  or  passion  which,  for  the 
time  being,  are  permitted  to  overwhelm  the  judgment,  is 
no  defense  to  a  charge  of  crime.18 

Emotional  Insanity  is  a  morbid  derangement  of  the  emo- 
tional powers,  or  inability  to  control  the  impulses.  It  is 
closely  allied  to  irresistible  impulse.  The  latter  is  intel- 
lectual, the  former  emotional.  Emotional  insanity  is  not 
an  excuse  from  criminal  responsibility.19 

Kleptomania  does  not  exonerate  from  a  charge  of  lar- 
ceny; but  it  should  mitigate  the  penalty. 

Statute. — A  statute  which  provides  that  insanity  shall 
not  be  a  defense  to  a  charge  of  crime  violates  the  constitu- 
tional provisions  against  depriving  a  party  of  life,  liberty, 
or  property  without  due  process  of  law  and  guaranteeing 
the  right  of  trial  by  jury.20 


is  Lynch  v.  Com.,  77  Pa.  St.,  205;  Guetig  v.  State,  66  Ind.,  94. 

19  David  Dudley  Field  in  Ga.,  Ala.  L.  J.,  273. 

20  State  v.  Strassburg,  60  Wash.,   106. 


CHAPTER  XXI. 

INSANITY. 

i 

In  Civil  Law. 
Contracts. 

Validity. — The  contracts  of  lunatics  or  persons  non 
compos  mentis  are  voidable,  not  void,  and  may  be  ratified 
or  avoided  when  the  disability  is  removed,  or  during  dis- 
ability, by  a  conservator  legally  appointed  and  qualified.1 
This  applies  to  a  deed  executed  by  an  idiot  before  he  has 
been  adjudged  to  be  such.2  But  a  contract  made  with  a 
lunatic  during  a  lucid  interval  is  binding  on  him.3 

Purpose. — This  provision  of  law  is  intended  for  the  pro- 
tection of  the  incompetent  against  his  own  weakness  and 
the  avarice  of  the  unscrupulous  and,  therefore,  can  be  taken 
advantage  of  only  by  him  or  his  representative.  The  com- 
petent party  is  bound  by  the  agreement  as  he  cannot  have 
any  legal  grounds  for  complaint,  except,  of  course,  as  in 
the  case  of  all  contracts,  for  fraud,  duress,  accident  or 
mistake. 

Necessaries. — An  insane  person  is  liable  for  necessaries 
supplied  to  him  in  good  faith,  and  it  is  not  necessary  to 
prove  a  specific  agreement,  and  in  fact  a  specific  agreement 
would  not  be  enforced,  because  the  law  raises  a  contract  by 
implication  on  the  part  of  the  insane  person,  by  virtue  of 
which  the  reasonable  value  of  such  necessaries  becomes 
payable  as  a  debt,  but  not  for  an  amount  in  excess  of  the 


iMead  v.  Stegall,  77  111.  App.,  679. 
2  Burnham  v.  Kidwell,  118  HI.,  425. 
8  Lilly  v.  Waggoner,  27  111.,  395. 

224 


INSANITY — CIVIL   LAW.  225 

agreed  price,  if  any.4  Where  there  is  nothing  in  the  ap- 
pearance of  an  alleged  insane  person  to  indicate  his  inca- 
pacity, and  he  purchases  necessary  goods  at  a  fair  and 
reasonable  price,  and  the  seller  has  no  notice  of  his  having 
been  adjudged  insane,  he  will  be  liable  to  pay  for  the  price 
agreed  therefor  where  no  conservator  has  been  appointed 
for  him,  and  he  is  in  the  actual  management  and  control  of 
his  own  business.5 

Degree  of  Insanity  Invalidating  Contracts. — The  tests  for 
insanity  in  civil  matters  is  entirely  different  from  that 
applied  in  the  administration  of  the  criminal  laws.  A  party 
will  be  considered  so  insane  as  to  justify  an  avoidance  of 
his  contracts  when,  from  disease,  senility  or  defective  de- 
velopment, he  is  rendered  incompetent,  successfully  to  con- 
duct business.6  Knowledge  of  right  and  wrong  does  not 
enter  into  the  question,  except  as  it  relates  to  mental 
strength,  and  the  mind  need  not  be  abnormal.  In  all  civil 
matters,  the  question  is  one  of  mental  strength  rather  than 
of  mental  derangement.  The  operations  of  the  mind  may 
be  perfectly  regular  and  rational,  but  if  the  mind  is  too 
weak  to  comprehend  the  nature  and  effect  of  ordinary  busi- 
ness transactions,  or  the  transaction  in  question,  the  court 
will  not  permit  the  party  to  bind  himself  by  his  financial 
engagements.7 

The  question  is  usually  complicated  with  questions  of 
fraud,  duress  and  undue  influence.  Where  there  is  some 
evidence  of  the  presence  of  any  or  either  of  these,  the 
courts  will  not  enforce  the  engagements  of  a  party  at  the 
suit  of  his  adversary  if  it  shall  appear  that  he  was  so  inca- 
pacitated mentally  as  not  fully  to  comprehend  the  nature 
and  effect  of  the  transaction. 


*  Fruit  v.  Anderson,   12  111.  App.,  421. 
6  McCormick  v.  Littler,  85  111.,  62. 

6  Burnham  v.  Kidwell,   113  111.,   425,  429. 

7  Greene  v.  Maxwell,  251  111.,  335. 


226  MEDICAL   JURISPRUDENCE. 

Marriage. — A  marriage  is  void  ab  initio  where  the  men- 
tal faculties  of  the  husband  at  the  time  of  the  celebration 
were  so  impaired  that  he  was  unable  to  understand  the 
nature  and  effect  of  his  acts  and,  especially,  where  his  con- 
dition was  known  to  the  wife  and  where  he  was  subject  to 
improper  influences  exerted  to  the  end  that  the  conspirators 
might  profit  by  the  marriage.8  When  unaccompanied  by 
fraud,  duress,  or  undue  influence,  mere  weakness  of  mind 
will  not  invalidate  a  marriage  unless  the  mental  incapacity 
be  such  that  the  party  could  not  comprehend  the  nature 
and  effect  of  the  transaction ;  that  is,  the  nature  of  the  con- 
tract and  the  duties  and  responsibilities  it  entails.9  A  mar- 
riage which  is  the  result  of  a  delusion  and  without  which 
it  would  not  have  been  entered  into,  will  be  set  aside  as 
invalid.10  In  this  case  the  alleged  marriage  was  induced 
through  the  medium  of  spiritualism. 

Delirium  Tremens. — Insanity  from  delirium  tremens,  at 
the  time  of  the  marriage,  will  void  the  contract,  but  whether 
the  party  was  really  insane  or  only  intoxicated  is  usually  a 
question  of  fact  for  the  jury  to  decide.11 

Drunkenness. — Mere  drunkenness  will  not  be  sufficient  to 
release  a  party  from  his  agreement,  but  he  will  be  pro- 
tected against  the  improvidence  of  his  own  contracts,  en- 
tered into  by  him  while  in  a  state  of  intoxication  which 
drowns  reason,  memory  and  judgment,  and  impairs  the 
mental  faculties  to  such  an  extent,  for  the  time  being,  as  to 
render  him  non  compos  mentis.  When  the  mind  of  a  con- 
tracting party  has  been  broken  down  by  a  long  course  of 
dissipation,  continual  drunkenness  and  debauchery,  the 
feverish  moments  of  a  half-sober,  or  even  sober,  inter- 
val, cannot  be  called  a  lucid  interval  for  the  purpose  of 


SPyott  v.  Pyott,  191  111.,  280;  25  A.  C.,   1127. 

9  Dunphy  v.  Dunphy,   161  Cal.,  380;   27  A.  C.,   1230,   1236. 

10  Orchardson  v.  Cofield,  171  111.,  14. 

11  Prine   v.    Prine,    36   Fla.,    676;    Gillett   v.   Gillett,    78    Mich.,    184. 


INSANITY CIVIL   LAW.  227 

establishing  a  contract  made  during  such  interval.12 
Impaired  Faculties. — Though  the  mind  of  a  party  may, 
to  some  extent,  be  impaired  by  age  or  disease,  still  if  he 
has  capacity  to  comprehend  the  nature  of  the  business  and 
its  effects,  and  to  act  rationally  in  the  particular  trans- 
action in  which  he  is  engaged,  if  he  can  understand  the 
nature  of  his  business  and  the  effect  of  what  he  is  doing, 
and  can  exercise  his  will  with  reference  thereto,  his  acts 
will  be  valid  and  binding  upon  him  and  his  representatives.13 

Wills. 

Mental  Capacity. — The  possession  of  mind  and  memory 
sufficient  to  enable  the  testator  to  transact  ordinary  busi- 
ness, such  as  renting  his  real  estate,  settling  accounts,  buy- 
ing and  selling  property,  and  to  know  and  understand  the 
business  he  was  engaged  in,  and  the  effect  of  the  disposi- 
tion made  by  him  of  his  property,  at  the  time  he  made  the 
will  in  dispute,  is  a  proper  test  of  testamentary  capacity.14 
The  usual  test  is  that  the  party  be  capable  of  acting  ration- 
ally in  the  ordinary  affairs  of  life,  and  of  understanding 
the  effect  and  circumstances  of  his  acts.15  Capacity  to 
transact  ordinary  business  is  too  high  a  test  of  mental 
capacity  for  making  a  will,  because  cases  may  exist  where 
a  less  degree  of  mental  capacity  is  required  intelligently  to 
give  effect  to  a  purpose  already  formed  in  relation  to  the 
disposition  of  property  by  will,  than  is  required  in  the 
transaction  of  ordinary  business  when  dealing  with  others 
at  arm's  length.16  The  provisions  of  the  will  and  the  cir- 
cumstances of  the  testator  should  be  considered,  because  a 
person  may  be  competent  to  dispose  of  a  small  estate  among 
a  few  persons,  by  simple  gifts,  and  yet  be  incompetent  to 


12  Martin  v.  Harsh,  231  111.,  384,  389. 

13  Martin  v.  Harsh,  231  111.,  384,  389. 

14  Taylor  v.  Pegram,  151  111.,  106 ;  Campbell  v.  Campbell,  130  111.,  466. 

15  Meeker  v.  Meeker,   75  111.,   260. 

16  Sinnet  v.  Bowman,  151  111.,  146;  Taylor  v.  Cox,  153  111.,  220. 


228  MEDICAL    JURISPRUDENCE. 

dispose  of  a  large  estate  among  a  great  number  of  persons 
by  complex  and  involved  conditions.17  The  capacity  must 
be  sufficient  to  comprehend  the  condition  of  the  property 
and  the  provisions  of  the  will,  and  to  recall  those  who  are 
the  proper  and  natural  objects  of  testator's  bounty,  and 
the  memory  must  be  sufficient  to  retain  these  with  ability 
to  form  a  judgment  upon  them.18  But  it  need  not  be  suffi- 
cient to  validate  a  deed  where  he  is  dealing  with  an  antago- 
nist, and  must  balance  and  compare  considerations.19 

Insane  Delusion. — An  insane  delusion  in  regard  to  one 
who  is  a  natural  object  of  testator's  bounty  and  affection, 
and  which  causes  a  disposal  differing  from  what  testator 
otherwise  would  have  made,  is  sufficient  to  destroy  capacity. 
The  same  rule  applies  if  the  delusion  is  in  respect  to  a  duty 
or  moral  obligation  on  the  part  of  the  testator  towards  a 
corporation,  society  or  individual  benefited  by  the  will.20 

A  delusion  which  is  unconnected  with  the  facts  controlling 
disposition  of  the  property  does  not  incapacitate.21 

Undue  Influence. — In  matters  pertaining  to  the  contest  of 
wills  on  the  ground  of  mental  incapacity,  insane  delusion, 
etc.,  the  question  of  undue  influence  or  fraud  is  usually 
present  and,  quite  frequently,  is  the  controlling  factor. 
The  less  the  mutual  capacity  the  less  the  improper  influ- 
ence which  will  invalidate  the  will,  hence  the  two  must  be 
considered  together. 

Sound  Mind  and  Memory. — The  meaning  of  the  phrase 
"sound  mind  and  memory,"  is  that  the  testator  shall  pos- 
sess sufficient  mental  power  and  understanding  to  compre- 
hend what  property  he  has  -to  dispose  of,  the  natural  ob- 
jects of  his  affection  and  bounty,  and  to  understand  the 


IT  Taylor  v.  Pegram,   151  111.,   106;   Green  v.  Green,   145  111.,  264. 

18  Delafield  v.  Parrish,   25  N.  Y.,   9 ;    1  Redfield   Surrog.,   130. 

19  Greene  v.  Maxwell,  251  111.,  335,  340. 

20  American   Bible   Society  v.    Price,    115   111.,    623. 

21  Stanton  v.  Wetherwax,  16  Barb.,  259 ;  Brace  v.  Block,  125  111.,  33. 


INSANITY CIVIL   LAW.  229 

nature  of  his  acts,  and  the  effect  his  will  will  have  upon  the 
natural  objects  of  his  bounty  and  affection.22  It  is  not 
necessary  that  testator  retain  all  his  vigor  of  mind  and 
memory;  impairment  of  mind  and  memory  is  not  incom- 
patible with  testamentary  soundness  and  capacity.23  Ca- 
pacity to  transact  ordinary  business,  ability  to  comprehend 
objects  and  subjects  of  bounty,  and  freedom  from  insane 
delusions,  which  especially  affect  the  power  of  disposition, 
constitute  testamentary  capacity;  that  is,  sound  mind  and 
memory,  even  though  the  mind  is  not  perfectly  balanced.24 

Torts. 

•  ••• ->v 

Responsibility. — Where  a  loss  must  be  borne  by  one  of 

two  innocent  parties,  the  law  places  the  burden  upon  the 
party  whose  act  or  default  occasioned  the  same.25  Hence, 
an  insane  person  or  a  lunatic  even  though  incapable  of  har- 
boring a  wrongful  or  malicious  intent  is  liable  in  a  civil 
action  for  torts  committed  by  him.26  But  where  ^an  evil 
intent  or  express  malice  is  an  essential  element  of  the 
wrong,  an  insane  person  or  an  imbecile  without  capacity  to 
have  such  motives,  is  not  liable  for  damages  resulting  from 
such  act.  Thus,  he  cannot  be  held  liable  for  libel,  slander, 
conspiracy  or  malicious  prosecution.27 

Homicide. — While  an  insane  person  is  not  liable  crimi- 
nally for  a  homicide  committed  by  him,  he  is  liable  civilly 
in  compensatory  damages  to  those  who  have  suffered  by  the 
act;  in  other  words,  the  gravity  of  the  tort  does  not  relieve 
or  increase  the  liability.28 

Damages. — In  an  action  against  an  insane  person  to  re- 


22  Ring  v.  Lawless,  190  III.,  520. 

23Graybeal  v.  Gardner,   146  111.,  336;  Taylor  v.  Pegram,   151  111.,   106. 

24  Hutchinson  v.  Hutchinson,    153   111.,  347;   Freeman  v.  Easly,   117  111.,   317. 

25  B.  Co.  v.  Hall,  124  Ga.,  322. 

26  Mclntyre  v.  Scholte,  121  111.,  660. 

27  Jewell  v.  Colby,  66  N.  Y.,  399;  Williams  v.  Hays,  143  N.  Y.,  442  ;t  4  A.  0.,  569. 

28  Young  v.  Young,  141  Ky.,  76;  Ballinger  v.  Bader,  153  N.  C.,  488;  42  L.  B.  A.,  84. 


230  MEDICAL    JURISPRUDENCE. 

cover  damages  for  a  tort  committed,  whether  of  misfeasance 
or  nonfeasance,  the  measure  of  damages  is  mere  compen- 
sation to  the  party  for  the  injury  sustained.  Exemplary 
damages  cannot  be  recovered.29 


29  Holdom  v.  A.  O.,  W.  W.,   159  111.,  619 ;   21  A.  C.,   1350-5. 


CHAPTER  XXII. 
WOUNDS. 

Definition. — A  wound  is  any  lesion  of  the  body,  and  com- 
prises not  only  solution  of  continuity,  but  every  kind  of 
accident,  such  as  bruises,  contusions,  fractures,  dislocations 
and  the  like.1 

Surgically. — A  wound  is  a  solution  of  continuity  in  the 
soft  parts  by  some  mechanical  agent.2 

Wound  implies  force  and  violence.    All  wounds  are  ac- 
companied by  some  death  of  tissue,  and  usually  by  hemor- 
rhage. 
Character  of  Wounds: 

1.  According  to  depth. — (a)  Superficial,  (b)  penetrating, 
and  (c)  perforating. 

(a)  A  superficial  wound  is  one  which  does  not  enter 
deeply  into   the  tissue, — the   injury  is   of  the 
surface. 

(b)  A  penetrating  wound  is   onel  which  enters  a 
cavity  or  part,  but  does  not  pass  through  it. 

(c)  A  perforating  wound  is  one  which  both  enters 
and  emerges  from  a  cavity  or  part. 

2.  According  to  presence  or  absence  of  infection. — (a) 
Aseptic,  (b)  Septic,  and  (c)  Poisoned. 

(a)  An  aseptic  wound  is  one  not  contaminated  by 
bacterial  or  poisonous  infection. 

(b)  Septic  wound  is  one  contaminated  by  bacterial 
or  other  f  ermentive  agents,  causing  suppuration 
and  sloughing. 


1  Bouvier's  Law  Dictionary. 

2  Dunglison's  Medical  Dictionary. 

231 


232  MEDICAL    JURISPRUDENCE. 

(c)  A  poisoned  wound  is  one  contaminated  by  poi- 
sonous infection. 

In  common  parlance  we  frequently  speak  of 
these  wounds  as  clean,  sloughing  or  poisoned, 
as  the  case  may  be. 

3.  According  to  the  condition  of  soft  parts. — Incised, 
lacerated,  contused,  punctured,  penetrating  and  gun- 
shot. 

Gun-shot  wounds — Facts  to  be  considered : 

1.  Orifice  of  entrance. 

2.  Track  of  missile  in  the  tissue. 

3.  Orifice  of  exit. 
Cause  of  Death  from  Wounds. — 

1.  By  direct  violence  and  injury  to  a  vital  organ. 

2.  By  pressure  from  hemorrhage  interfering  with  the 
functions  of  a  vital  organ. 

3.  From  severe  hemorrhage,  either  external  or  into  one 
of  the  cavities. 

Relation  of  Wound  to  Death. — 

(a)  No  relation  whatever  of  cause  and  effect; 

(b)  Where  such  relation  may  exist; 

(c)  Wound  remote  cause  of  death,  and 

(d)  Wound  proximate  cause  of  death. 

Shock. 

Definition. — Shock  is  the  result  of  powerful  impressions 
made  upon  the  nerve-centers;  a  sudden  depression  of  the 
vital  powers  due  (a)  to  injury,  or  (b)  to  profound  mental 
emotion.  When  due  to  injury  it  is  called  surgical  shock; 
when  due  to  fright,  grief  or  other  powerful  mental  impres- 
sions, it  is  called  mental  shock.  The  latter  is  sometimes 
delayed  for  a  considerable  time  after  the  occurrence  of  the 
violent  emotion;  it  is  then  called  deferred  shock. 

Delusions,  and  in  children,  convulsions,  are  sometimes 


WOUNDS.  233 

present.  Through  its  depression  of  the  nerve-centers,  a 
circulatory  paresis  is  induced,  and  this  results  in  an  accu- 
mulation of  blood  in  the  large  abdominal  vessels,  with  a 
corresponding  loss  to  the  cerebral  and  peripheral  circula- 
tion, accompanied  by  disturbance  of  voluntary  cerebration, 
and  lowering  of  surface  temperature.  Shock  may  be  of  all 
degrees,  from  slight  to  fatal. 

Symptoms. — A  condition  of  shock  is  denoted  by  sub-nor- 
mal temperature,  rapid  and  feeble  pulse,  pinched  features, 
cold,  pallid,  clammy  skin,  profuse  perspiration,  shallow 
irregular  respiration,  diminution  or  loss  of  sensibility  to 
pain,  and  a  tendency  to  urinary  suppression. 

If  death  results  from  a  wound  given  in  malice,  not  in  its 
nature  fatal,  but  which,  being  neglected  or  improperly 
treated,  caused  death,  the  assailant  may  be  held  guilty  of 
murder  unless  it  clearly  appears  that  the  neglect  or  im- 
proper treatment  was  the  sole  cause  of  the  death.3 

Opinions  of  Physicians. — When  the  facts  sought  to  be 
elicited  are  material  to  an  issue  in  court,  the  following  are 
a  few  of  the  countless  questions  which  physicians  may  be 
called  upon  to  answer: 

Might  specified  symptoms  be  the  result  of  certain  in- 
juries'? To  illustrate,  might  a  miscarriage  have  been  pro- 
duced by  certain  injuries  received  in  a  certain  manner? 

Might  a  certain  wound  have  been  inflicted  by  a  certain 
instrument? 

Are  certain  injuries  permanent? 

What  force  was  necessary  £o  produce  a  certain  wound? 

What  was  the  nature  of  the  instrument  causing  a  given 
wound? 

Might  a  specified  injury  have  been  received  in  a  speci- 
fied manner? 

Was  a  certain  wound  necessarily  fatal? 


S  Crum  v.  State,  64  Miss.,  4. 


234  MEDICAL   JUKISPKUDENCE. 

How  soon  would  death  necessarily  follow  the  infliction 
of  the  wound? 

Was  the  death  the  result  of  the  wound  or  of  the  surgical 
operation? 

Did  the  shock  following  the  wound  have  any  relation  to 
the  shock  following  the  surgical  operation  and  the  result- 
ing death? 

Was  a  certain  wound  the  cause  of  death? 

Was  the  wound  the  immediate  or  remote  cause  of  death? 

Was  death  caused  by  the  wound  or  by  disease? 

Where  the  deceased  was  afflicted  with  a  mortal  disease 
and  was  injured,  death  following,  which  was  the  cause  of 
death? 

Was  a  certain  wound  accidental,  suicidal  or  homicidal? 

Which  wound  was  the  primary  cause  of  death? 

(a)  Where  more  than  one  was  necessarily  fatal. 

(b)  Where  no  one  was  necessarily  fatal. 

Was  a  certain  wound  inflicted  before  or  after  death? 

What  was  the  probable  direction  of  the  violence? 

If  gun-shot  wound,  what  was  the  probable  distance  of  the 
weapon  from  the  body  at  the  time  of  the  discharge? 

What  was  the  caliber  of  the  weapon? 

What  was  the  character  of  the  missile? 

Was  a  given  wound  accidental,  suicidal  or  homicidal? 

Could  a  certain  wound  have  been  self-inflicted? 

Could  two  wounds,  both  of  which  are  necessarily  fatal, 
have  been  self-inflicted? 


CHAPTEE  XXIII. 
BLOOD  STAINS. 

Definition  of  Blood. — Blood  is  the  fluid  which  circulates 
in  the  arteries  and  veins  of  animals. 

Classification. — From  the  standpoint  of  histology,  it  is 
usually  classed  as  a  tissue.  Its  inter-cellular  substance  is 
fluid,  while  in  other  tissues  this  substance  is  solid. 

Origin. — It  is  developed  from  the  middle  layer  of  the 
embryo. 

Color  of  Blood. — In  vertebrates,  except  amphioxis,  the 
blood  is  red ;  in  other  animals,  it  is  of  various  colors, — red, 
colorless,  bluish,  greenish,  milky,  etc.  In  the  human,  and 
most  craniota,  venous  blood  is  dark  red,  and  arterial  blood 
is  bright  scarlet. 

Weight,  or  Specific  Gravity. — Human  blood  has  a  spe- 
cific gravity  of  about  1.055. 

Quantity. — In  quantity,  the  blood  of  the  healthy,  normal 
human  is  about  one-eighth  the  weight  of  the  person.  One 
author  gives  it  at  only  one-thirteenth. 

Composition. — The  blood  is  primarily  composed  of  a 
fluid  known  as  liquor  sanguinis,  or  plasma,  in  which  float 
myriads  of  small  semi-solid  corpuscles  and  platelets.  The 
proportion  in  bulk  of  the  fluid  to  the  solids  varies  from 
equality  to  about  two  to  one.  In  a  cubic  millimeter  of 
healthy  normal  human  blood,  there  are  about  5,000,000  of 
these  corpuscles. 

KINDS  OP  CORPUSCLES. — There  are  two  kinds  of  corpuscles, 
red  and  white,  and  while  the  proportion  varies  through  a 
wide  range,  in  health  and  disease,  there  are  about  350  times 
as  many  red  as  white  corpuscles. 

235 


236  MEDICAL   JURISPBUDENCE. 

Red  Corpuscles. — The  blood  derives  its  color  from  the 
innumerable  corpuscles  which  it  contains.  These  red  cor- 
puscles are  flat,  bi-concave  discs,  non-nucleated  and  almost 
always  round  in  mammals,  and  nucleated  and  almost  always 
oval  in  other  craniota.  In  man,  their  larger  diameter 
averages  about  7.5  micro-millimeters  (1/3400  inch),  while 
in  amphiuma  and  tridactylum,  the  longer  diameter  is 
67.22  micro-millimeters  (1/363  inch).  In  their  narrow 
diameter  or  thickness  these  discoid  bodies  are  about  one- 
fourth  as  large.  The  redness  characteristic  of  these  discoid 
cells  is  not  manifest  wjien  examined  singly,  at  which  time 
they  appear  of  a  light  straw  color.  The  color  is  due  to 
hemoglobin,  which  constitutes  about  ninety  per  cent  of  the 
dried  substance  of  a  cell.  The  red  corpuscles  are  em- 
bryologically  of  mesoblastic  origin,  beginning  their  life 
history  as  nucleated  cells,  and  as  such,  possessing  amoeboid 
movement  and  reproductive  powers.  At  birth,  however, 
all  nuclei  have  been  lost  by  them,  as  well  as  all  power  of 
movement  and  reproduction.  After  birth,  the  production 
of  new  red  corpuscles  is  believed  to  occur  mainly  in  the 
marrow  of  the  bones. 

White  Corpuscles. — The  white  corpuscles  are  slightly 
larger  than  the  red  and  average  about  eight  to  ten  micro- 
millimeters  in  their  larger  diameters.  They  are  nucleated, 
and  the  proto-plasm  of  the  cell-body  is  more  or  less  gran- 
ular. Their  shape  varies,  due  largely  from  .their  amoeboid 
movement.  They  accomplish  some  locomotion  by  the  same 
movement.  In  this  way  they  pass  through  the  walls  of  the 
capillaries  into  the  tissues,  where  they  are  known  as  wan- 
dering cells.  Embryologically,  the  white  corpuscles  are 
derived  from  the  mesoblast.  New  white  cells  are  derived 
by  reproduction,  which  seems  to  take  place  largely  in  the 
lymphatic  organs,  especially  the  spleen. 

PLASMA. — This   fluid  portion   of  the  blood   consists   of 


BLOOD   STAINS.  237 

water  containing  calcium  salts,  the  chlorides  of  sodium, 
potassium,  phosphates,  albumen  and  other  proteid  sub- 
stances, as  well  as  fatty  and  extractive  substances. 

PLATELETS. — The  platelets  are  small,  non-nucleated, 
round  or  oval  bodies,  about  one-third  the  diameter  of  a 
red  corpuscle.  They  are  usually  found  in  groups,  and  are 
prone  to  disintegration.  Their  function  is  unknown,  but 
there  is  reason  for  believing  that  they  are  concerned  in  the 
process  of  coagulation  when  it  occurs. 

Hcemoglobin. — Haemoglobin  is  a  very  important  substance 
found  in  the  red  corpuscles,  and  has  the  property  of  readily 
taking  up  oxygen  from  the  lungs  and  as  readily  giving  it  up 
to  the  tissues  of  the  body.  Its  known  characteristics  make 
it  an  important  factor  in  the  identification  of  blood  and 
blood-stains.  On  exposure  to  the  air,  it  quickly  crystallizes. 
Crystalline  haemoglobin  is  dark  red  in  color,  differing  some- 
what with  the  direction  from  which  the  crystals  are  viewed, 
is  readily  soluble  in  cold  water  and  imparts  its  color  to  the 
solution.  The  crystals  combine  freely,  not  only  with  oxy- 
gen, but  also  with  nitric  oxide,  carbon  monoxide  and  prob- 
ably carbon  di-oxide. 

Hcematin. — After  long  exposure  to  the  air,  haemoglobin 
is  changed  to  hasmatin,  a  bluish-black  substance,  which  is 
insoluble  in  water  and  in  the  ordinary  organic  solvents,  but 
which  dissolves  readily  in  alkaline  solutions.  Haematin  is 
extremely  stable,  chemically;  the  caustic  alkalies,  hydro- 
chloric and  nitric  acids  have  no  effect  on  it  and  it  does  not 
decompose  even  at  as  high  a  temperature  as  180  degrees 
Centigrade.  Under  ordinary  conditions  it  retains  its  chemi- 
cal identity  indefinitely. 

Oxy-hcemoglobin. — Oxy-haemoglobin  is  a  crystalline  com- 
pound of  oxygen  and  haemoglobin,  and  the  crystals  thereof 
have  a  bright  scarlet  color  like  that  of  arterial  blood. 

Coagulation. — If  blood  escapes  from  the  body,  coagula- 


238  MEDICAL    JUKISPRUDENCE. 

tion  or  clotting  occurs.  After  standing  awhile,  the  blood 
separates  into  a  dark  and  semi-solid  mass,  the  clot,  and  a 
thin  red  fluid,  the  serum.  The  clot  is  composed  of  red 
blood  corpuscles  matted  together  with  fibrine.  The  process 
of  clotting  is  accelerated  by  cold,  and  retarded  by  heat. 
It  may  occur  in  the  blood  vessels  from  obstruction  or  infec- 
tion, or  in  the  neighboring  tissues  where  a  vessel  has  been 
ruptured.  After  death  the  blood  remains  fluid  in  the  capil- 
laries, but  clots  in  the  veins.  Clots  are  sometimes  found 
in  the  cavities  of  the  heart. 

Tests  for  Blood. — There  are  several  tests  recognized  and 
practiced  to  determine  whether  a  certain  substance  or  cer- 
tain stains  are  of  blood  origin.  These  tests  are  based  upon 
ascertained  characteristics  of  blood,  or  of  some  of  its  com- 
ponent parts. 

The  tests  may  be  classified  as  (1)  Physical,  (2)  Chemical 
and  (3)  Biological.  The  physical  test  consists  of  several 
different  experiments;  such  as  (a)  the  heat  test,  (b)  the 
microscopic  test,  (1)  for  corpuscles  and  (2)  for  ha}min  crys- 
tals and  (c)  the  spectroscopic  test.  There  are  three  forms 
of  the  chemical  test,  namely,  (a)  the  ammonia  tests,  (b) 
the  potassium-hydrate  tests,  and  (c)  the  guaiacum  tests. 
These  tests  collectively  will  distinguish  blood  from  other 
substances  with  great  accuracy  under  favorable  conditions, 
but  do  not  with  certainty  differentiate  between  human  blood 
and  the  blood  of  some  animals.  The  value  of  the  tests  de- 
pends upon  the  skill  of  the  experimenter. 

ACCURACY  OF  TESTS. — Some  of  these  tests  are  remarkably 
delicate,  and  their  combined  results  and  eliminations  ap- 
proximate certainty.  From  as  small  a  quantity  as  1/1000 
of  a  grain  of  dried  blood,  crystals  of  haematin  hydro- 
chlorate  have  been  obtained.  Owing  to  the  stability  of 
haematin,  it  makes  little  difference  as  to  the  age  of  the  stain. 
In  1819,  Kotzebue  was  assassinated  at  his  desk  in  his  own 


BLOOD    STAINS.  239 

house  by  Sand,  and  the  papers  upon  his  desk  were  stained 
with  his  blood.  In  1879,  crystals  of  hasmatin  hydrochlorate 
were  obtained  from  these  stains.  Accurate  as  these  tests 
may  be  for  ascertaining  the  presence  of  blood  stains,  they 
are  not  infallible  in  practice.  The  person  making  the  test 
may  prove  unskilled  or  negligent;  he  may  even  be  biased 
or  suborned.  The  difficulty  of  getting  sufficient  suspected 
material  and  of  putting  it  in  condition  to  make  the  test  is 
often  very  great  and  may  sometimes  lead  to  precarious 
results. 

BIOLOGICAL  TEST. — The  biological  test  is  based  upon  the 
fact  that  when  a  sterilized  solution  of  the  blood  of  one 
animal  is  injected  into  the  veins  of  a  different  species  of 
animal  haemolysis  is  induced,  but  if  the  animal  treated  be 
of  the  same  species  as  the  animal  whose  blood  is  used  such 
disintegration  will  not  take  place.  The  difficulty  in  this 
test  lies  in  the  impracticability  of  finding  the  subject  to  be 
treated.  This  test  has  been  so  far  experimented  with  that 
we  have  learned  that  the  blood  of  the  anthropoid  ape  gives 
the  characteristic  human  reaction,  but  that  the  blood  of  the 
lower  monkeys  does  not.  A  sterilized  solution  of  human 
blood  injected  into  the  veins  of  the  higher  type  of  apes  does 
not  occasion  disintegration  or  destruction  of  the  corpuscles, 
but  a  different  condition  arises  when  the  test  is  made  with 
the  lower  types  of  monkeys.  If  future  experiments  bear 
out  the  results  of  present  investigations  along  this  line,  it 
would  seem  that  a  party  who  has  had  the  proper  experience, 
with  sufficient  materials,  could  determine  with  great  accu- 
racy the  origin  of  a  certain  blood  solution. 

Color  of  Blood  Stains. — The  color  of  blood  stains  depends 
upon  a  variety  of  circumstances,  among  them  being  their 
age,  their  thickness,  their  origin,  the  material  upon  which 
they  are  found,  etc. 

As  BELATED  TO  CRIMINAL  LAW. — Blood  stains  have  always 


240  MEDICAL   JUKISPEUDENCE. 

been  recognized  among  the  ordinary  indicia  of  crime,  and 
they  frequently  afford  important  evidence  in  homicide 
cases.1  To  determine  whether  such  stains  are  human  blood 
is  often  a  vital  question  in  a  criminal  case.  Two  questions 
are  always  presented  for  solution,  namely,  (1)  Is  the  solu- 
tion in  question  blood,  and  (2)  Is  it  human  blood?  A  nega- 
tive answer  to  the  first  question  also  negatives  the  second, 
and  the  inquiry  need  go  no  further  and  any  inference  of 
guilt  arising  from  the  presence  of  the  stain  is  completely 
refuted.  Some  of  the  evidence  to  establish  the  first  condi- 
tion, that  is,  whether  the  given  stain  is  blood,  is  a  matter 
of  common  observation  and  every  day  experience,  but  by 
the  aid  of  science  many  effective  means  of  distinguishing 
the  same  are  available  to  the  investigator  and,  therefore, 
seized  upon  by  the  courts  whenever  the  issue  is  involved. 

TESTIMONY. — An  ordinary  witness  who  has  observed  a 
substance  or  stain  and  formed  a  conclusion  from  his  obser- 
vation, may  testify  that  it  is  or  is  not  blood.  Some  courts, 
however,  limit  such  witness  to  the  statement  that  it  "  looked 
like  blood,"  or  " appeared  to  be  blood."2  In  the  latter 
case,  an  ordinary  witness,  having  examined  the  blood  under 
a  microscope,  based  his  conclusion  partly  upon  such  exami- 
nation. The  opinion  of  a  physician  is  competent  evidence. 
He  is  always  permitted  to  state  that  a  certain  stain  is 
blood.3  The  testimony  of  a  physician  was  admitted  to 
show  that,  upon  examination  by  means  of  the  microscope, 
certain  spots  were  found  to  be  human,  as  distinguished 
from  animal,  blood.4  Such  testimony  was  admitted  to  show 
that  of  certain  spots  found  on  a  board,  some  were  human 
blood  and  some  were  hog's  blood.5  Again,  the  testimony 


1  People  v.  Fernandez,   35  N.  Y.,  60;   Com.  v.  Tolliver,   119  Mass.,   312. 

2  People  v.  Bell,  49  Cal.,  485;   State  v.  Robinson,   117  Mo.,   649,   663;   Com.  v.  Sturte- 
vant,   117  Mass.,   122. 

3  State  v.  Knight,  43  Me.,  132;  Lindsay  v.  People,  63  N.  Y.,  143. 

4  Knoll  v.  State,   55  Wis.,  249. 

5  Lindsay  v.  People,  63  N.  Y.,  144. 


BLOOD   STAINS.  241 

of  a  physician  was  admitted  to  show  that  a  stain  on  a  shirt 
was  occasioned  by  the  blood  flowing  directly  on  the  outer 
surface,  as  shown  by  the  fact  that  the  coloring  matter  of 
the  blood  remained  on  the  outer  surface.6  In  the  latter 
case,  the  defense  attempted  to  show  by  the  testimony  of 
physicians  that  the  location  and  appearance  of  the  blood 
marks  on  the  shirt  of  the  defendant  demonstrated  that  the 
defendant  was  probably  prostrate  on  the  ground  and  de- 
ceased on  top  of  him  when  the  stains  on  the  shirt  were 
received.  The  court  held  that  this  was  not  a  matter  of 
medical  testimony,  as  it  merely  involved  a  question  of 
gravity. 

It  has  been  said  that  the  testimony  of  a  chemist  who  has 
analyzed  the  stain,  and  that  of  a  person  who  has  merely 
observed  it,  belong  to  the  same  legal  grade  of  evidence.7 

DEMONSTRATIVE  EVIDENCE. — Articles  having  spots  on  them 
resembling  blood  are  competent  evidence  to  go  to  the  jury, 
when  connected  with  the  subject  of  the  inquiry.8 


6  State  v.  Knight,  43  Me.,   132 ;   Dillard  v.  State,  58  Miss.,  370. 

7  People  v.  Fernandez,   35  N.  Y.,   61. 

SState  v.  Baker,  33  W.  Va.,  319;  Thomas  v.  State,  67  Ga.,  460. 


CHAPTER  XXIV. 
CRIMES  WITH  MEDICAL  ASPECTS. 

Introduction. — While  all  offenses  of  violence  against  the 
person  may  involve  medical  evidence,  there  are  some  crimes 
in  which  the  services  of  medical  science  are  sometimes  in- 
dispensable to  the  administration  of  justice.  The  essential 
element  of  the  offense  may  rest  entirely  on  medical  evi- 
dence. There  will  be  no  attempt  made  to  illustrate  and 
detail  the  character  of  the  medical  evidence  which  may  be 
present  in  special  offenses  and  particular  cases,  and  where 
such  evidence  is  referred  to,  the  reference  is  made  in  order 
to  illustrate  the  legal  principles  involved,  the  importance 
of  the  medical  evidence  and  its  relation  to  the  administra- 
tion of  law.  Most  treatises  on  medical  jurisprudence,  espe- 
cially those  prepared  by  medical  men,  discuss  only  the 
medical  side  of  these  cases,  and  to  them  the  reader  is  re- 
ferred. 

Rape. 

Definition. — Rape  is  the  carnal  knowledge  of  a  female 
forcibly  and  against  her  will.  Where  the  female  is  under 
the  age  of  consent,  there  need  not  be  any  force  and  the  act 
may  meet  with  her  approval,  or  even  be  brought  about  at 
her  solicitation. 

Age  of  Consent. — At  common  law  the  age  of  consent  was 
ten  years,  but  the  subject  is  now  generally  regulated  by 
statute  and  the  age  fixed  varies  from  ten  years,  in  some 
States,  to  eighteen  years  in  other  States. 

Punishment. — Rape  is  regarded  as  a  most  brutal  crime 
and  the  penalty  in  all  civilized  communities  is  justly  severe. 

242 


CRIMES  WITH  MEDICAL  ASPECTS.  243 

On  the  high  seas  and  in  all  places  within  the  exclusive  juris- 
diction of  the  United  States,  it  is  punishable  by  death. 

Physical  Violence. — Where  physical  violence  is  the  means 
employed  to  perpetrate  the  crime,  the  female  must  resist 
her  uttermost  and  to  the  last,  and  herein  many  delicate 
medical  questions  may  arise  and  should  be  given  proper 
consideration.1 

Force. — The  kind  and  degree  of  force  used  is  not  mate- 
rial, if  it  be  sufficient  to  overcome  resistance.  It  may  be 
physical  violence,  fraud,  deception,  as  by  impersonating  her 
husband,  intimidation  by  threats  and  through  fear  of  per- 
sonal injury  or  public  scandal,  the  administration  of  drugs 
or  gases  producing  anesthesia  or  exciting  sexual  passions, 
taking  advantage  of  natural  sleep,  hypnotic  influences,  or 
any  of  the  countless  artificial  means  whereby  a  female's 
power  or  desire  to  resist  may  be  overcome.  The  gist  of  the 
offense  is  the  having  sexual  intercourse  without  her  con- 
sent, or,  what  amounts  to  the  same  thing  in  law,  at  a  time 
when,  because  of  a  natural  or  artificial,  permanent  or 
transient,  mental  condition  she  was  incapable,  in  fact  or 
in  law,  of  giving  consent.  Since  defloration  of  a  female 
under  the  influence  of  an  anesthetic  is  rape,  and  the  grava- 
men of  the  offense  is  the  violation  of  the  person,  the  intent 
with  which  or  the  person  by  whom  the  anesthesia  is  induced 
is  unimportant.  Whether  the  stupefaction  was  brought 
about  at  her  request  to  relieve  the  pain  of  an  operation,  or 
without  her  consent  to  excite  her  sexual  passions,  leading 
to  voluntary  submission,  or  to  overcome  her  power  of  re- 
sistance to  his  assault,  where  intercourse  occurs,  the  offense 
is  rape. 

Previous  Unchastity  of  the  Woman. — The  previous  un- 
chastity  of  the  woman  is  immaterial,  except  as  it  affects  her 


1  Rahke  v.  State,  168  Ind.,  615;  Brown  v.  State,  127  Wis.,  193;  Adams  v.  People,  179 
111.,  638. 


244  MEDICAL   JURISPRUDENCE. 

credibility,  where  the  act  is  denied,  or  bears  upon  the  pre- 
sumption of  consent,  where  the  act  is  admitted.2 

Signs. — The  characteristic  signs  of  rape  are  numerous 
and  usually  easy  to  discover.  When  called  on  a  case  in- 
volving a  charge  of  defloration  of  a  female  the  physician 
should  take  every  available  precaution  to  locate  and  verify 
the  medical  evidences  of  the  offense.  The  condition  of  the 
woman's  clothing,  the  appearance  of  her  sexual  organs,  the 
presence  of  seminal  fluid,  and  all  other  special  facts  indica- 
tive of  sexual  intercourse,  with  or  without  force,  should  be 
specially  noted  and  classified.3  It  is  needless  to  say  that  a 
thorough  physical  examination  of  the  woman,  and  tests  for 
spermatozoa,  when  possible,  are  indispensable  to  the  ends 
of  justice.4 

EUPTURE  OF  HYMEN. — As  a  matter  of  law,  the  crime  may 
be  consummated  without  a  rupture  of  the  hymen,  but  all 
circumstances  must  be  considered  before  forming  an  opin- 
ion.5 

Poisoning. 

Definition. — Poison  is  any  substance  which,  when  intro- 
duced into  the  animal  organism,  produces  morbid,  noxious 
or  deadly  effects,  or  is  injurious  to  health  or  life.6  Poison 
imports,  ex  vi  termini,  a  substance  which  has  fatal  proper- 
ties when  introduced  into  the  animal  system.7  Whether  a 
given  substance  is  poison  is  always  a  question  of  fact,  and 
may  involve  a  chemical  analysis  or  other  scientific  demon- 
stration.8 

Malice. — The  intentional  administration  of  a  poison  for 
any  wrongful  purpose  implies  malice.9 

2  Carney  v.  State,  118  Ind.,  525;  Maxey  v.  State,  66  Ark.,  523. 

3  Com.  v.  Lynes,  142  Mass.,  577. 

4  State  v.  Tuipner,   36  Minn.,   535;    State  v.  Murphy,   118   Mo.,   7;    State  v.   Perry,   41 
W.  Va.,  641. 

5  State  v.  Hargrove,  65  N.  C.,  467;  Braner  v.  State,  25  Wis.,  413. 

6  State  v.  Baldwin,  36  Kan.,  20 ;  People  v.  Van  Deleer,  53  Cal.,  149. 

7  State  v.  Slagle,  83  N.  C.,  130. 

8  Com.  v.  Kennady,   170  Mass.,  25. 
»  Siebert  v.  People,  143  111.,  571. 


CRIMES   WITH   MEDICAL   ASPECTS.  245 

Common  Law. — At  common  law,  administering  poison 
was  assault  and  battery  with  intent  to  kill  and,  if  death  re- 
sulted, the  offense  was  murder. 

Post-mortem. — If  the  evidence  of  the  administration  of  a 
specific  poison  is  positive  and  the  symptoms  established 
are  characteristic,  there  may  be  a  conviction  without  the 
aid  of  a  post-mortem,10  but  wherever  possible  an  autopsy 
should  be  held,  and  the  investigation  should  go  to  the  ex- 
tent of  ascertaining,  not  only  the  presence  of  poison  in  the 
tissue,  and  the  kind,  but  also  as  to  whether  there  was  suffi- 
cient, under  the  circumstances,  to  cause  death.  Where 
there  is  no  direct  evidence  of  the  administration  of  the 
drug,  its  presence  in  the  tissue  after  death,  in  sufficient 
quantities  to  occasion  that  event,  is  very  essential  to  a  con- 
viction of  the  offender.11  In  cases  of  poisoning,  most  ques- 
tions involving  the  science  of  medicine  are  purely  medical, 
not  legal,  and  for  the  medical  evidence  of  death  or  injury 
by  poisoning,  the  reader  is  referred  to  medical  treatise  on 
the  subject.  The  symptoms  of  death  from  certain  well- 
known  poisons  are  so  familiar  to  the  profession  that,  in 
some  jurisdictions,  a  general  practitioner  may  testify  that 
the  given  symptoms  are  those  of  a  certain  poison  and,  with 
sufficient  other  facts  given  to  enable  him  to  form  an  intelli- 
gent conclusion,  he  may  state  that  in  his  opinion  death  was 
caused  by  such  substance,  even  though  he  never  had  a  case 
of  such  poisoning  in  his  practice,  because  he  is  not  confined 
to  information  derived  from  observation  and  experience, 
but  may  base  his  opinion  on  knowledge  derived  from  medi- 
cal works  and  other  sources.12 

Infanticide. 
Definition. — Infanticide  is  the  criminal  destruction  of  a 


10  Polk  v.  State,  36  Ark.,  117. 

11  Hatchett  v.  Com.,  76  Va.,  1030. 

12  Siebert  r.  People,  143  111.,  571,  579. 


246  MEDICAL   JURISPRUDENCE. 

new-born  child.  It  is  a  term  applied  to  the  act  of  destroy- 
ing an  infant  at  the  time  of  birth,  but  after  it  has  estab- 
lished an  independent  existence.  The  destruction  of  a 
foetus,  even  though  partly  delivered  is  not  infanticide  and, 
at  common  law,  was  only  a  misdemeanor,  while,  on  the  other 
hand,  if  the  child  has  lived  a  sufficient  length  of  time  under 
circumstances  to  establish  its  independent  existence  by 
other  evidence  than  that  disclosed  by  the  corpse  itself,  such 
as  witnesses  who  saw  and  heard  the  child  and  other  evi- 
dence of  the  presence  of  a  living  infant,  its  destruction 
would  not  be  classified  as  infanticide,  but  as  a  plain  case  of 
homicide.  Such  prosecutions  are  usually  directed  against 
the  mother,  but  any  other  person  who  is  present  may  be 
guilty  of  the  offense.  The  subject  is  of  special  interest  to 
the  physician  because  of  the  great  number  of  medical  ques- 
tions involved  as  essential  elements  of  the  crime.  If  the 
child  has  established  an  independent  existence,  the  willful 
taking  of  its  life  will  be  murder,  and  will  subject  the 
offender  to  the  penalties  of  such  offense,  but  if  it  still  de- 
pends upon  its  mother  for  life,  its  destruction  will  only  be 
a  misdemeanor,  hence  the  importance  of  knowing  and  prov- 
ing to  which  class  the  act  in  question  belongs.  However, 
the  killing  of  an  unborn  quick  child  is  now  generally  de- 
clared a  criminal  homicide  by  statute.  But  in  the  absence 
of  statute,  such  act  is  only  a  misdemeanor.13 

Duty  of  the  Mother. — What  duty  does  a  mother  owe  her 
unborn  child?  Does  that  duty  increase  or  vary  between  the 
instant  of  conception  and  the  moment  of  final  parturition? 
These  questions  the  law  has  wisely  left,  in  a  large  measure, 
to  the  instincts  of  the  race.  Whatever  may  be  the  mother's 
obligations  in  the  premises,  the  law  has  never  undertaken 
to  outline  or  classify  them.  Her  sense  of  right  and  the 
instinct  of  self -preservation,  have,  in  a  great  measure,  been 


13  Williams  v.  State,  34  Fla.,  217;  Evans  v.  People,  49  N.  Y.,  86. 


CBIMES  WITH  MEDICAL  ASPECTS.  247 

relied  upon,  without  supervision  or  mandate,  to  protect 
society  in  so  far  as  the  public  is  interested  in  the  subject. 
From  the  earliest  time,  however,  she  was  held  accountable 
for  its  willful  destruction,  after  "quickening,"  it  being  sup- 
posed that  at  that  time  the  child  had  life  and  power  of  mus- 
cular movement. 

Prevalence. — The  offense  is  apparently  much  less  preva- 
lent than  formerly.  We  should  not,  however,  flatter  our 
generation  by  inferring  that  such  a  fact  is  due  to  any  great 
improvement  or  change  in  the  morals  of  society  in  the 
meantime.  The  explanation  is  more  likely  to  be  found  in 
the  increased  and  more  prevalent  knowledge  of  means  of 
preventing  conception  and  of  procuring  the  expulsion  of  the 
unwelcome  intruder  before  maturity  without  positively 
jeopardizing  the  life  of  the  mother.  The  human  heart  with 
its  weaknesses  and  follies  is,  in  all  ages,  the  same. 

Intent. — Intent  to  take  the  life  of  the  infant  must  be 
proven.  The  evidences  of  intent  are  generally  circumstan- 
tial and  of  a  nature  to  be  explained  on  the  hypothesis  of 
ignorance,  accident  or  natural  causes.  Here  is  where  the 
ingenuity  of  the  medical  man  is  taxed  to  find  the  true  facts 
in  the  case.  Mere  voluntary  exposure  of  herself  by  the 
mother  at  the  time  of  the  delivery,  for  the  purpose  of  con- 
cealing her  shame  and  which,  without  other  fault  on  her 
part,  results  in  the  child's  not  surviving  the  ordeal,  or  mere 
failure  on  her  part  to  get  assistance  at  the  time,  would  not 
be  sufficient  to  establish  intent. 

Independent  Existence. — What  constitutes  being  born 
alive  and  having  an  independent  existence  is  a  question 
involved.  All  authorities  agree  that  the  offense  cannot  be 
predicated  unless  the  child  had  completely  proceeded  in  a 
living  state  from  the  body  of  the  mother.  At  least  two  con- 
ditions of  fact  must  also  exist : 

(1)  The  child  must  have  been  alive;  and 


248  MEDICAL    JURISPRUDENCE. 

(2)  It  must  have  had  an  independent  circulation,  and  ac- 
cording to  some  authorities, 

(3)  It  must  have  breathed. 

But  if  these  conditions  existed,  it  makes  no  difference 
whether — 

(1)  It  was  still  attached  to  the  mother  by  the  umbilical 
cord,  or,  according  to  some  (and  probably  the  better)  au- 
thorities, 

(2)  It  had  breathed  or  not. 

According  to  one  authority,  a  child  is  born  alive  when, 
breathing  and  living  by  reason  of  breathing  through  its 
own  lungs  alone,  it  exists  as  a  live  being  without  deriving 
any  of  its  living,  or  power  of  living,  by  or  through  any  con- 
nection with  its  mother.14 

SEVERANCE  OF  UMBILICAL  CORD. — According  to  English 
authorities  birth  is  complete  when  the  child  has  been  wholly 
expelled  from  the  body  of  the  mother,  even  though  it  is 
still  connected  with  her  by  the  umbilical  cord.15  However, 
it  would  ordinarily  seem  the  more  correct  position  that 
birth  is  not  complete  until  the  child  has  an  independent 
circulation,  and  breathes  through  its  own  lungs.  If  circu- 
lation has  been  set  up,  the  mere  continuity  of  the  funis  is 
unimportant.  Independent  circulation  should  be  one  of  the 
tests  and  as  soon  as  that  condition  exists,  with  power  to 
purify  the  blood  in  its  own  lungs,  shown  by  respiration,  the 
child  may  be  said  to  have  complete,  independent  existence.16 
Circulation  and  respiration  are  essential  functions  of  ani- 
mate life  and,  until  both  have  been  established,  there  is  not 
a  complete  self-sustaining  organism. 

MEDICAL  EVIDENCE  OF  INDEPENDENT  EXISTENCE. — The 
medical  evidence  that  a  child  was  born  alive  and  had  an 
independent  existence  is  derived, — 


i*  Beg.  v.  Hindley,   13   Cox,  0.   0.,   79 ;    State  v.  Winthrop,   43  la.,   519. 
16  Reg.  v.  Trilloe,  41  E.  C.  L.,  352. 
16  State  v.  Winthrop,  43  la.,  519. 


CRIMES   WITH   MEDICAL   ASPECTS.  249 

1.  From  an  inspection  of  its  general  appearance  and 

2.  From  the  conditions  of — 

(a)  Respiratory  Organs, 

(b)  Circulatory  System,  and 

(c)  Abdominal  Organs. 

BESPIEATOKY  ORGANS. — Where  breathing  has  occurred,  the 
respiratory  organs  offer  the  most  reliable  proof  of  live 
birth.  The  thorax  is  higher  or  more  vaulted  in  appearance 
than  where  the  child  has  not  breathed,  and  the  diaphragm 
is  more  depressed  after  respiration  than  before.  After 
breathing,  the  larynx  is  wider,  and  is  not  closed  by  the 
epiglottis. 

Hydrostatic  Test. — The  hydrostatic  test,  celebrated  in 
the  history  of  infanticide,  is  based  on  the  fact  that  the  lungs 
in  their  foetal  or  unaerated  condition  sink  when  placed  in 
water,  while  the  lungs  of  a  child  that  has  breathed  (or  where 
they  have  been  otherwise  inflated)  float  in  water.  This  test 
for  infanticide  was,  for  several  centuries,  regarded  as  de- 
cisive by  men  of  distinction  who  had  thoroughly  experi- 
mented on  the  subject,  but  some  writers  of  experience  and 
authority  are  opposed  to  the  test  as  fallacious,  Baron  Gar- 
row  styling  it  " scientific  humbug."17 

Breathing. — It  is  a  well  recognized  fact  that  some  chil- 
dren breathe  before  complete  expulsion  and,  on  the  other 
hand,  instances  are  not  wanting  in  which  breathing  does 
not  commence  until  some  time  after  complete  parturition. 
Therefore,  the  fact  that  a  child  has  breathed  does  not  neces- 
sarily prove  that  it  was  born  alive,18  nor,  on  the  other  hand, 
does  the  fact  that  the  child  never  breathed  prove  that  it  was 
not  born  alive.19 

CIRCULATORY  ORGANS. — The  condition  of  the  circulatory 
organs  may  assist  in  arriving  at  the  fact  of  independent 


17  Dole  v.  Johnson,  50  N.  H.,  452. 

18  Bex.  w.  Wright,  9  0.  &  P.,  754. 
IB  State  v.  Winthrop,  43  la.,  619. 


250  MEDICAL    JURISPRUDENCE. 

existence.  The  condition  of  the  foramen  ovale  and  the 
ducti  arteriosus  and  venosus  is  probative  of  independent 
breathing  and  circulation,  but  their  presence  in  the  foetal 
condition  does  not  conclusively  negative  independent  exist- 
ence. 

ABDOMINAL  ORGANS. — In  the  foetus  the  liver  is  relatively 
enormously  large  and  very  vascular.  If  the  child  has  par- 
taken of  any  food,  the  stomach  and  intestinal  canal  may 
afford  proof  thereof,  by  reason  of  the  presence  therein  of 
food,  milk  or  farinaceous  or  saccharine  matters,  from  which 
life  is  necessarily  inferred.  Other  medical  facts  will  read- 
ily occur  to  the  alert  and  skilled  physician. 

Natural  Causes  of  Death. — The  natural  causes  of  death 
during  birth  and  in  new-born  children  is  a  subject  of  great 
importance  in  medical  jurisprudence.  The  principal 
causes  acting  during  birth  and  immediately  subsequent 
thereto  are, — 

1.  Compression  of  the  umbilical  cord, 

2.  Strangulation  by  the  umbilical  cord, 

3.  Hemorrhage  from  the  umbilical  cord, 

4.  Suffocation  by  the  amniotic  membrane, 

5.  Malformation  of  the  mother, 

6.  Protracted  delivery, 

7.  Constitutional  debility  of  the  infant,  and 

8.  Accidental  fractures. 

The  scar  or  mark  left  by  strangulation  by  the  umbilical 
cord  can  usually  be  readily  distinguished  from  the  mark 
left  by  strangulation  by  a  rope  or  string,  as  the  funis  never 
leaves  any  mark  of  excoriation  or  cutting  of  the  skin,  the 
mark  being  broad,  smooth,  uniform  and  without  break. 
Hemorrhage  from  the  cord  may  occur  from  accidental  rup- 
ture during  the  birth,  or  it  may  occur  after  severance.  Of 
course,  sometimes  it  occurs  from  the  cutting  of  the  cord 
with  a  criminal  design.  A  child  often  dies  of  constitutional 


CEIMES  WITH  MEDICAL  ASPECTS.  251 

feebleness.  An  inspection  of  the  body  will  frequently  war- 
rant this  judgment  where  there  is  no  other  apparent  cause 
of  death. 

In  the  case  of  Reg.  v.  Middleship,  reported  in  Cox's  Crim- 
inal Cases,  275,  the  evidence  tended  to  show  that  the  child 
had  dropped  from  the  mother  while  she  was  in  a  privy. 
Other  similar  instances  are  not  wanting  in  the  experience 
of  medical  men,  and  they  show  that  in  cases  of  concealed 
birth  where  there  is  a  fracture  of  the  skull,  it  may  possibly 
be  due  to  accident  and  not  to  a  criminal  act.  Therefore,  the 
medical  man  seeking  to  find  out  the  right  should,  by  his 
investigation,  negative  all  possible  accidents  and  natural 
causes. 

Identity  of  Mother. — The  identity  of  the  mother  may  be 
an  issue  in  the  case.  Where  such  fact  is  at  issue,  a  phy- 
sician, from  proven  symptoms  and  history  shown,  or  from 
his  own  examination  of  the  defendant,  where  such  has  been 
made,  may  give  his  opinion  as  to  whether  the  defendant  had 
been  delivered  of  a  child  and  how  recently.20  When  the 
other  evidence  of  the  identity  of  the  mother  is  only  circum- 
stantial, the  medical  evidence  of  pregnancy  and  delivery, 
or  their  absence,  becomes  very  important  in  determining 
the  right  of  the  case. 

Burden  of  Proof. — It  has  been  stated  by  writers  of  author- 
ity that  about  one  in  every  twenty  legitimate  children  is 
born  dead  while,  in  illegitimates  the  proportion  is  about  one 
in  every  ten.  We  may  not  agree  on  the  proportions,  but  all 
persons  of  experience  must  agree  on  the  fact  that  many  chil- 
dren are  born  dead,  even  in  the  absence  of  any  criminal  act 
on  the  part  of  the  mother  or  other  person.  This  fact,  there- 
fore, is  an  important  consideration  in  determining  the  guilt 
in  charges  of  infanticide.  In  all  prosecutions  for  crime  the 
defendant  is  presumed  to  be  innocent  until  he  is  proven 


20Echols  v.  State,  81  Ga.,  696. 


252  MEDICAL   JURISPRUDENCE. 

guilty,  and  the  jury  must  be  satisfied  beyond  reasonable 
doubt.  No  man  can  honestly  be  satisfied  beyond  reasonable 
doubt  where  the  chances  are  one  in  twenty  that  he  is  wrong. 
Therefore,  in  cases  of  infanticide,  the  prosecution  has  the 
burden  of  proving  that  the  child  was  born  alive.  In  prac- 
tice, this  means  that  the  prosecution  is  put  to  the  necessity 
of  producing  some  evidence  that  the  child  did  have  an  inde- 
pendent existence. 

Statutes. — During  the  reign  of  James  I,  a  statute  was 
enacted  making  concealment  of  the  death  of  a  bastard  child 
prima  facie  evidence  of  murder  by  the  mother,  but  she 
could  overcome  the  presumption  by  the  testimony  of  one 
reputable  witness  that  the  child  was  born  dead.  By  a 
statute  of  Pennsylvania  passed  May  31,  1781,  such  conceal- 
ment was  conclusive  evidence  against  the  mother. 


CHAPTER  XXV. 
STATUTES  OF  LIMITATIONS. 

Policy  of  the  Law. — It  is  the  policy  of  the  law  to  discour- 
age the  litigation  of  stale  matters.  Such  policy  was  orig- 
inally adopted  to  discourage  perjury  by  trying  issues  when 
the  facts  were  fresh  in  the  memory  of  the  witnesses  and 
the  falsity  of  testimony  could  more  readily  be  proved. 
Statutes  of  limitations  are  universally  in  effect  whereby  the 
time  within  which  actions  may  be  brought  is  designated  with 
reference  to  the  time  the  cause  of  action  accrued. 

When  Cause  Accrues. — The  question  of  when  a  cause  of 
action  accrues  is  often  difficult  to  determine,  and  has  led  to 
innumerable  interpretations  by  the  courts.  At  the  time  a 
party  has  a  right  to  demand  fulfillment  of  an  obligation  by 
another,  his  right  of  action  is  complete  and  is  said  to  have 
accrued.  When  a  cause  of  action  accrues  the  statute  is  said 
to  begin  to  run.  In  actions  for  personal  injuries,  the  statute 
begins  to  run  at  the  time  the  injuries  are  received.1 

Malpractice  Cases. — As  a  general  proposition,  in  mal- 
practice cases,  the  cause  of  action  accrues  at  the  time  the 
alleged  improper  services  were  rendered.  Thus,  where  the 
negligence  and  unskillfulness  of  a  surgeon  in  treating  a  frac- 
tured arm  were  the  gist  of  the  action,  it  was  held  that  the 
statute  began  to  run  at  the  time  of  the  discharge  of  the  case 
after  the  setting  of  the  arm,  where  the  facts  showed  that 
the  wrongful  setting  was  the  real  and  substantial  cause  of 
complaint.2 

Period  of  the  Statutes. — In  some  States  actions  in  tort  for 


1  Fadden  v.  Satterlee,  43  Fed.,  568. 

2  Coady  v.  Reins,   1  Mont.,  424. 

253 


254  MEDICAL   JURISPRUDENCE. 

malpractice  must  be  begun  within  one  year  from  the  accrual 
of  the  cause  of  action.  In  other  States  it  is  two  years. 
Most  statutes  favor  actions  on  contracts  by  giving  them  a 
longer  period  to  run.  Under  such  statutes,  an  action  for 
breach  of  contract  by  malpractice  may  be  maintained,  after 
the  statute  has  run  against  the  tort  action. 

Diligence. — It  is  not  the  policy  of  the  law  to  refuse  redress 
to  an  injured  party  who  has  a  just  cause  of  complaint.  Dil- 
igence in  enforcing  remedies  is  the  purpose  of  the  statutes 
under  consideration.  A  party  must  not  sleep  on  his  rights. 
Reasonable  promptness  in  appealing  for  redress  is  encour- 
aged and,  in  fact,  demanded.  However,  a  party  cannot  be 
said  to  sleep  on  his  rights  before  he  knows  that  he  has  suf- 
fered injury  at  the  hands  of  another.  Generally,  in  matters 
of  malpractice,  the  time  when  the  action  accrues  is  always 
manifest  and  self-evident,  as  there  can  be  no  mistaking 
exactly  when  the  wrong  was  done  and  the  injury  inflicted. 
The  presence  of  the  injury  is  a  continual  reminder  of  the 
wrongful  conduct.  But  cases  there  are  which  are  not  free 
from  doubt  and  uncertainty.  Take  the  case  of  a  course  of 
treatment  by  a  physician,  which  was  clearly  wrong  from 
the  beginning  and  resulted  in  injury  to  the  patient.  Should 
the  statute  begin  to  run  with  the  first  treatment  or  at  the 
termination  of  the  relation!  Is  not  the  wrong  a  continuous 
one?  Is  there  not  a  breach  of  duty  at  the  last  as  well  as  at 
the  first,  or  at  any  intervening  visit!  So  long  as  the  im- 
proper treatment  continues  there  is  a  continuing  breach  of 
the  duty  which  the  practitioner  owes  to  his  patient. 

Specified  Services. — Where  there  is  an  agreement  for 
certain  specified  services,  covering  a  period  of  time,  the 
statutes  should  not  begin  to  run  until  the  services  have 
been  completed,  or  the  relation  terminated  in  some  other 
manner.3  It  would  appear  that  this  proposition  should 


3  Gillett  v.  Tucker,  67  O.  St.,  106. 


STATUTES    OF   LIMITATIONS.  255 

not  apply  where  the  ground  of  complaint  was  for  some 
known  improper  conduct  which,  to  the  knowledge  of  the 
patient,  could  not  be  remedied  by  subsequent  proper  atten- 
tion and  treatment.  Thus,  the  wrongful  amputation  of  a 
limb  where  such  operation  was  clearly  unnecessary  and  ill- 
advised,  would  create  a  cause  of  action  at  the  time  and  the 
statute  should  begin  to  run  at  the  time  of  the  act  regardless 
of  subsequent  conduct  of  the  operator. 

Knowledge  of  Injury. — It  has  been  held  that  the  breach 
of  duty  constitutes  the  ground  of  complaint  and  causes  the 
action  to  accrue, — not  knowledge  by  the  plaintiff  of  the  fact 
of  the  wrong  evidenced  by  the  resulting  injury.4  The 
statute  begins  to  run  at  the  time  the  injury  is  inflicted,  not- 
withstanding the  results  may  not  be  fully  developed  until 
long  after.5  Thus,  malpractice  in  the  delivery  of  a  woman, 
whereby  the  child  is  injured,  dates  from  the  time  of  the 
delivery,  although  the  serious  consequences  of  the  negli- 
gence to  the  child  are  not  apparent  for  several  years  there- 
after.6 

Latent  Injuries. — General  laws  cannot  cover  every  pos- 
sible contingency.  They  are  made  with  reference  to  usual 
experiences.  Exceptional  cases  must  be  reached  by  inter- 
pretation, when  within  the  purview  of  the  act  and  by  new 
legislation,  when  they  are  not.  The  statutes  under  discus- 
sion have  been  enacted  with  the  unexpressed  assumption 
that  the  party  wronged  knows  of  his  injury  at  the  time  of 
its  infliction.  In  most  cases  of  malpractice  this  is  not  a 
violent  presumption  because,  in  fact,  it  is  in  harmony  with 
the  circumstances.  The  man  with  a  deformity  occasioned 
by  an  improper  setting  of  the  parts,  by  the  surgeon,  knows 
of  the  blunder  at  the  time  and  is  continually  reminded  of  the 


4  Frounce  v.  Nichols,  22  O.  C.  C.,  539. 

5  Fadden  v.   Satterlee,  43   Fed.,   568. 

6  Miller  v.  Ryerson,  22  Ont.,   369. 


256  MEDICAL   JUBISPEUDENCB. 

wrong  which  was  done  him,  and  of  the  breach  of  duty  by  his 
surgeon.  Cases  there  are,  however,  where  the  injury  is 
inflicted  and  the  patient  does  not  know  it,  and  from  the  very 
nature  of  things  cannot  know  at  the  time  that  he  has  been 
wronged.  The  law  is  not  intended  to  protect  the  wrong- 
doer who  successfully  covers  up  his  misdeeds,  nor  the  party 
whose  negligence  of  omission  is  concealed  by  the  nature  of 
his  dereliction.  Thus,  the  patient  in  whose  abdomen  an 
operating  surgeon  has  left  a  sponge,  absorbent  cotton,  a  pair 
of  scissors  or  other  foreign  substance,  may  be  ignorant  of 
the  fact  until  years  after  when,  driven  by  excruciating  pain 
to  undergo  another  operation,  the  presence  of  the  intruder 
is  disclosed.  There  can  be  no  reason  for  encouraging 
promptness  of  action  where  the  party  is  ignorant  of  any 
wrong  having  been  done  him.  Promptness  presupposes 
knowledge  of  the  matter  to  which  it  relates. 

Continuing  Obligations. — Where  a  physician  operated 
upon  a  patient  for  what  he  pronounced  to  be  appendicitis, 
and  neglected  to  remove  from  her  abdominal  cavity  a  sponge 
which  he  had  placed  therein,  in  connection  with  the  opera- 
tion, and  this  condition  continued  during  his  entire  profes- 
sional relation  to  the  case,  it  was  held  that  the  statute  of  lim- 
itations did  not  commence  to  run  against  the  right  to  sue  and 
recover  on  account  of  want  of  skill,  care  and  attention,  until 
the  case  had  been  abandoned  or  the  professional  relation 
otherwise  terminated.  There  was  an  agreed  consideration 
in  this  case  for  the  operation  itself,  and  also  for  such  treat- 
ment as  might  be  necessary  thereafter,  and  the  contract 
was  regarded  as  an  entirety.  The  obligation  on  the  part 
of  the  physician  to  use  due  care  and  diligence,  to  the  end 
that  recovery  might  be  had,  existed,  therefore,  as  long  as 
the  relation  of  physician  and  patient  continued.  "It  was  a 
constant  and  daily  obligation  to  use  ordinary  skill  and  care 
and  if,  by  omission  or  negligence  he  had  left  a  foreign  sub- 


STATUTES   OF   LIMITATIONS.  257 

stance  within  the  walls  of  the  incision  at  the  time  of  the 
operation,  it  behooved  him  to  afford  timely  relief.  Neglect 
of  this  duty,  imposed  by  the  continuance  of  obligation,  was 
a  continuous  and  daily  breach  of  the  same  and,  as  the  facts 
show,  caused  continuous  increasing  daily  and  uninterrupted 
injury."  It  will  be  observed  that  in  this  case  there  were 
two  distinct  grounds  on  which  to  base  complaint  against 
the  surgeon: 

First:  Negligently  permitting  the  sponge  to  remain  in 
the  cavity  when  closing  the  incision,  and 

Second:  Negligently  allowing  it  to  remain  there  from 
day  to  day  until  he  dismissed  his  patient  from  his  attention. 

The  neglect  of  the  surgeon  was  inherent  in  the  operation, 
and  also  in  the  subsequent  treatment.7 

A  Continuing  Wrong. — Sponge  cases  and  others  of  that 
type  are  in  reality  continuing  breaches  of  the  obligation 
which  the  operator  owes  to  his  patient.  If  the  surgeon 
knew  of  the  presence  of  the  foreign  body  and  purposely, 
with  or  without  malice  but  without  sufficient  reason,  im- 
properly permitted  it  to  remain,  his  conduct  in  that  respect 
would  amount  to  an  assault.  If  he  did  it  through  negli- 
gence, the  law  would  charge  him  with  knowledge,  for  he 
should  have  known,  and  the  legal  consequences  as  to  his 
liability  would  be  the  same.  In  either  alternative  the  act 
amounts  to  a  continuing  assault,  each  recurring  pain  being 
a  new  breach  of  duty  by  the  operator,  and  the  statute  should 
not  begin  to  run  until  the  discovery  of  the  fact  by  the 
patient,  or  until,  in  the  exercise  of  reasonable  care  and  due 
diligence,  under  the  circumstances,  the  patient  should  have 
discovered  his  real  condition.  If  the  object  is  removed  by 
the  offending  surgeon,  the  statute  should  not  begin  to  run 
until  after  such  removal  and  the  disclosure  of  such  fact  to 
the  patient  by  the  surgeon. 


7  Gillett  v.  Tucker,  67  0.  St.,  106. 


258  MEDICAL    JURISPRUDENCE. 

Suit  for  Fee. — When  a  physician  delays  action  for  his  fee 
until  after  the  statute  of  limitations  has  run  against  an 
action  in  tort  by  his  patient  for  malpractice  in  reference  to 
the  same  services,  the  patient  may,  nevertheless,  show  the 
malpractice  as  a  defense  to  the  physician's  claim  even 
though  the  fee  had  been  agreed  upon  before  the  services 
were  rendered.  Under  such  circumstances,  generally  speak- 
ing, the  patient  is  limited  to  a  defeat  of  the  physician's 
claim ;  he  cannot  recover  affirmatively  against  the  physician. 
However,  the  decisions  are  not  in  harmony  on  this  subject, 
and  the  reader  is  referred  to  the  decisions  of  the  State  in 
which  he  is  interested. 

Persons  Under  Disability. — The  statutes  usually  except 
minors,  insane  persons  and  others  under  disability,  and  give 
them  a  certain  period,  usually  a  year,  after  the  removal  of 
the  disability  in  which  to  begin  suit.  Therefore,  in  case  of 
malpractice  on  a  minor,  the  possibility  of  litigation  is  not 
ended  until  a  year  or  more  after  the  patient  attains  his 
majority. 


CHAPTER  XXVI. 

MISCELLANEOUS. 

Business,  Contracts  and  Work  on  Sunday. 

Sunday. — In  contemplation  of  law  Sunday  is  merely  a 
day  of  rest.  In  this  country  there  is  no  attempt  by  law  to 
ingraft  upon  the  day  any  religious  aspect.  While  all 
religious  faiths  are  regarded  with  respect,  the  law  does  not 
attempt  to  enforce  any  religious  observance  of  the  day  nor 
to  treat  it  as  a  religious  institution.  Sunday,  as  a  Christian 
institution,  is  a  development  from  the  Jewish  Sabbath,  or 
day  of  rest. 

Duration  of  the  Day. — At  common  law,  the  natural  and 
civil  day  consists  of  twenty-four  hours,  extending  from 
midnight  to  midnight,  while  the  artificial  or  solar  day 
extends  from  sunrise  to  sunset.1  Some  statutes  relating 
to  work  on  Sunday  have  been  construed  to  mean  the  solar 
day,  from  sunrise  to  sunset.2  As  used  in  such  statutes, 
however,  the  more  general  interpretation  of  Sunday  is  that 
it  means  the  civil  day  of  twenty-four  hours,  extending  from 
midnight  Saturday  to  midnight  Sunday.3 

At  Common  Law. — For  centuries  Sunday  has  been  consid- 
ered a  non-judicial  day.  By  a  canon  of  the  Church 
ingrafted  on  the  common  law  all  judicial  proceedings  which 
took  place  on  that  day  were  void ;  however,  all  other  business 
might  lawfully  be  transacted  on  that  day.  Thus,  a  contract 
executed  on  Sunday  is  not  void  at  common  law,  by  reason  of 


1  Hiller  v.  English    (S.  C.),   4   Strob.,   486. 

2  Fox  v.  Abel,  2  Conn.,  541. 

a  State  v.  Green,  37  Mo.,  466,  470;  Schwab  v.  Mayforth,  1  City  Ct.  (N.  Y.),  177,  179; 
State  v.  Heard,  107  La.,  60;  Shaw  v.  Dodge,  5  N.  H.,  462,  463. 

259 


260  MEDICAL   JUEISPBUDENCE. 

having  been  entered  into  on  that  day.4  The  common  law 
does  not  prohibit  ordinary  labor  or  secular  work  on 
Sunday.5 

Statutes. — During  the  medieval  period  the  authority  of 
the  Church  was  so  universally  recognized  that  secular  leg- 
islation on  the  subject  of  Sunday  observance  appears  to 
have  been  unnecessary.  In  fact  the  day  appears  to  have 
been  treated  entirely  as  a  religious  institution.  By  the 
statute  of  5  and  6,  Edw.  V.,  Chap.  3,  it  was  provided  that  all 
secular  labor  on  Sunday  should  be  unlawful  except  in  cases 
of  necessity.  This  statute  was  greatly  enlarged  by  the  Act 
of  29  Chas.  2nd,  Chap.  7,  which  prohibited  all  "  worldly 
business"  except  when  absolutely  necessary  or  for  charity. 
These  statutes  have  been  substantially  enacted  and  fol- 
lowed in  all  the  United  States.  Our  courts  have  held  that 
statutes  prohibiting  the  execution  of  contracts,  the  transac- 
tion of  business  and  the  performance  of  secular  labor  on 
Sunday  are  a  reasonable  exercise  of  the  police  power  for  the 
protection,  health  and  general  welfare  of  society.  A  gen- 
eral law  prohibiting  the  transaction  of  all  business  and  the 
performance  of  all  labor  on  Sunday,  except  work  of  neces- 
sity and  charity  is  constitutional  and  enforcible. 

LIMITED  TO  CERTAIN  CALLINGS. — However,  where  such 
statutes  or  ordinances  single  out  a  particular  occupation 
whose  exercise  does  not  necessarily  disturb  the  peace  and 
good  order  of  society,  they  are  regarded  as  class  legislation 
and  will  not  be  enforced.6 

CONSTRUCTION. — Where  the  statutes  are  limited  to  a  pro- 
hibition of  disturbances  of  the  peace  and  good  order  of 
society  by  labor  on  Sunday,  they  are  construed  not  to  pro- 
hibit ordinary  business  transactions  or  professional  work. 

WORK  OF  NECESSITY  AND  CHARITY. — The  statutes  of  the 


4  Richmond  v.  Moore,  107  111.,  429. 

5  Eden  v.  People,  161  J1L,  296. 

6  Eden  v.  People,   161  HI.,  296. 


MISCELLANEOUS.  261 

various  States  prohibiting  labor  and  the  transaction  of  busi- 
ness on  Sunday,  naturally  and  necessarily  except  work  of 
necessity,  great  public  convenience,  and  charity.  What 
constitutes  work  of  necessity  and  charity  has  often  been 
before  the  courts  and  is  not  always  easy  to  determine.  The 
circumstances  of  each  particular  case  must  be  taken  into 
consideration.  An  act  which  would  be  considered  a  neces- 
sity under  one  set  of  circumstances,  might  be  clearly  pro- 
hibited under  a  different  set  of  circumstances. 

MEANING  OP  NECESSITY. — Necessity,  within  the  meaning  of 
the  law,  is  generally  considered  a  moral  and  social  fitness 
or  propriety  of  the  work  or  labor  under  the  circumstances 
of  the  particular  case.7  The  necessity  referred  to  in  the 
statute  need  not  be  an  absolutely  unavoidable  physical  neces- 
sity; a  mere  moral  emergency  which  will  not  reasonably 
admit  of  delay  is  a  necessity  within  the  contemplation  of 
such  statutes.8  It  has  been  said  that  it  is  impossible  to  lay 
down  any  general  rule  as  to  work  of  necessity  and  charity, 
and  also  that  the  exigencies  of  human  life,  which  demand 
work  of  necessity  and  charity,  are  so  numerous  and  diversi- 
fied by  attending  circumstances  as  to  defy  classification.9 

SEKVICES  OF  A  PHYSICIAN. — The  usual  services  of  a  phy- 
sician are  generally  regarded  as  coming  within  the  excep- 
tion as  work  of  necessity,  and  he  may  collect  the  usual 
reasonable  fee  for  medical  and  surgical  attention  on  Sun- 
day. 

Coroners. 

Definition. — A  coroner  is  a  municipal  or  county  officer 
who,  in  modern  times,  is  charged  with  the  duty  of  holding 
inquests  upon  the  bodies  of  persons  who  may  be  supposed 
to  have  died  violent,  unnatural  or  extraordinary  deaths.10 


7  Flagg  v.  Mullbury,   4   Gush.,   243 ;   Johnston  v.   People,   81   111.,   469. 

8  Burns  v.  Moore,  76  Ala.,  839,  342. 

9  Johnston  v.  Com.,  22  Pa.  St.,  102 ;  Ungericht  v.  State,  119  Ind.,  379. 

10  Bouvier's  Law  Dictionary, 


262  MEDICAL    JURISPRUDENCE. 

Duties. — At  the  present  time  the  duties  and  powers  of  a 
coroner  are  both  judicial  and  ministerial;  formerly,  at  an 
early  date,  they  were  exclusively  judicial.11  Wherever  the 
circumstances  surrounding  a  death  are  of  such  a  character 
as  to  sustain  a  reasonable  belief  that  it  resulted  from  unlaw- 
ful or  violent  means,  an  inquest  should  be  held.  The  de- 
cision of  the  necessity  therefor  lies  in  the  sound  discretion 
of  the  coroner,  which,  ordinarily,  will  not  be  reviewed  by 
the  courts.12  He  cannot  arbitrarily,  capriciously,  for  an 
ulterior  motive,  and  without  any  apparent  reason,  hold  an 
inquest.13  He  has  the  power  to  summon  witnesses  and 
retain  physicians  to  make  examination  and  autopsy.  He 
can  compel  the  attendance  of  a  physician  who  knows  the 
facts  or  has  inspected  the  body  and  require  him  to  give  his 
opinion  of  the  cause  of  death,14  but  he  can  not  compel  him 
to  perform  an  autopsy  as  a  basis  for  his  opinion.15 

Civil  Liability. — The  coroner  is  not  civilly  liable  for 
slander  for  any  remarks  or  instructions  he  may  give  the 
jury  on  the  facts  of  the  case  under  consideration,  even 
though  alleged  to  have  been  uttered  falsely  and  ma- 
liciously.16 

Boards  of  Health. 

Civil  Liability. — Where  members  of  a  board  of  health,  in 
good  faith,  act  in  a  judicial  capacity,  that  is,  in  the  exercise 
of  a  judicial  power  within  their  jurisdiction,  they  are  not 
civilly  liable  personally  to  a  party  who  claims  to  have  been 
damaged  by  their  decision  or  by  the  enforcement  thereof.17 
In  such  cases  there  is  no  presumption  in  favor  of  jurisdic- 


11  1  Bl.  Com.,   348 ;   Yeargin  v.  Siler,   83  N.   C.,   348. 

12  Boisliniere  v.  St.  Louis  Co.,  32  Mo.,  375. 

13  Lancaster  Co.   v.  Mishler,   100   Pa.   St.,   624;   Clark  Co.  v.  Galloway,   52  Ark.,   361; 
State  v.  Marshall,  82  Mo.,  484. 

14  St.  Francis  Co.  v.  Cummings,  55  Ark.,  421. 

15  Allegheny  Co.  v.  Watt,  3  Pa.  St.,  462. 

16  Thomas  v.  Churton,  2  B.  &  S.,  475. 

IT  Underwood  v.  Green,  42  N.  Y.,  140;  Salem  v.  Eastern  R.  Co.,  98  Mass.,  431;  Ray- 
mond v.  Fish,  51  Conn.,  80. 


MISCELLANEOUS.  263 

tion  and  the  board  has  the  burden  of  showing  that  the 
matter  in  question  was  within  their  cognizance. 

Medical  Services  Required  by  Law. 

Duty  of  Parent  to  Employ  Medical  Services  for  Minor 
Child. — It  is  the  duty  of  a  parent,  or  of  one  in  loco  parentis, 
to  procure  necessary  medical  treatment  for  his  minor  child 
and  for  any  gross,  willful  neglect  herein,  he  may  be  held 
criminally  liable.18  The  law  is  based  upon  the  assumption 
that  the  medical  services  were  a  necessity  and  applies 
wherever  the  party  sought  to  be  held  responsible  is  charged 
with  the  duty  of  supplying  the  minor  with  necessaries. 

Christian  Science. — Conscientious  scruples  generally 
against  the  employment  of  medical  assistance  in  case  of 
disease  or  accident  will  not  avail  the  responsible  party  as 
an  excuse  for  the  failure  to  procure  such  services.  In  this 
respect,  the  law  enforces  contemporaneous,  prevailing,  par- 
amount public  opinion  and  enlightenment.  Whether  the 
Christian  Scientist  be  regarded  as  a  survival  of  the  primor- 
dial stages  of  human  development,  or  as  a  projection  from 
the  mystic,  ethereal  regions  of  the  millenial  perfection  yet  to 
be,  a  camp-follower  or  a  van-guard  of  progress,  he  is  not 
in  harmony  with  present  notions  of  conditions  and  responsi- 
bilities, which  is  the  basis  of  all  law,  and  if  he  fails  to 
respond  to  present  requirements,  he  must  suffer  the  conse- 
quences. 

"I  entirely  agree  .  .  .  that  while  the  merits  or  demerits 
of  the  Christian  Science  or  faith  are  things  with  which  we 
have  nothing  to  do  as  long  as  it  does  not  transgress  or  lead 
to  a  transgression  of  the  law,  the  law  of  the  land  is  par- 
amount, and  it  is  not  for  people  to  set  themselves  up  in 
opposition  to  it;  that  the  law  of  the  land  must  be  obeyed, 
and  it  must  b'e  obeyed  even  though  there  be  something  in  the 


18  Stehr  v.  State,  92  Neb.,  755 ;  45  L.  R.  A.,  559. 


264  MEDICAL,   JURISPRUDENCE. 

shape  of  belief  in  the  conscience  of  the  person  which  would 
lead  them  to  obey  what,  in  his  state  of  mind,  he  may  consider 
a  higher  power  or  higher  authority.  And  especially  must 
there  be  obedience  where,  as  in  this  instance,  the  subject 
of  the  judgment  to  be  exercised  is  a  child  of  tender  years, 
unable  to  exercise  any  judgment  of  his  own.  In  one  form 
or  another  it  has  been  frequently  said  by  able  judges,  and 
it  cannot  be  too  widely  known  or  too  often  repeated,  that 
where  an  offense  consists  of  a  positive  act,  which  is  know- 
ingly done,  the  offender  cannot  escape  punishment  because 
he  holds  a  belief  which  impels  him  to  think  that  the  law 
which  he  has  broken  ought  not  to  exist  or  ought  never  to 
have  been  made." 19 

Religious  Belief. — Where  a  statute  provides  that  "every 
parent  of  any  child  who  wilfully  omits,  without  lawful  ex- 
cuse ...  to  furnish  necessary  .  .  .  medical  attendance  for 
such  child  is  guilty  of  a  misdemeanor,"  a  father  who  fails 
to  call  a  physician  and  who  refuses  to  permit  a  minor  child 
to  be  treated  by  a  physician  for  typhoid  fever  because  of 
his  religious  scruples  against  such  ministrations  is  liable 
to  the  penalty  the  law  inflicts.20  His  religious  conviction  is 
not  a  lawful  excuse.  "A  party's  religious  belief  cannot  be 
accepted  as  a  justification  for  his  commission  of  an  overt  act, 
made  criminal  by  the  law  of  the  land. ' ' 21 

Malingerers. 

Feigned  Diseases. — Diseases  are  often  feigned  so  success- 
fully as  to  baffle  the  most  skilled  medical  experts.  This 
subject  usually  comes  before  the  courts  in  attempts  to  mag- 
nify the  results  of  injuries,  in  actions  for  damages,  and  to 
appear  insane  when  charged  with  crime.  The  falsity  of 
pretended  results  is  often  extremely  difficult  to  demonstrate, 


19  Rex  v.  Lewis,   6  Ont.  L.  Rep.,   132,   1  B.  R.  C.,   732. 

20  Owens  v.  State,  6  Okl.  (Mm.,   110;  27  A.  C.,   1218,  1221. 

21  Reynolds  v.  U.  S.,  98  U.  S.,  145,  involving  polygamous  marriages. 


MISCELLANEOUS.  265 

and  the  mere  opinion  of  the  medical  expert  is  usually  out- 
weighed by  the  apparently  truthful  assertion  of  the 
malingerer.  Two  medical  questions  are  involved,— 

(a)  Is  the  party  in  fact  suffering  from  the  condition 
claimed,  and 

(b)  Could  the  pretended  condition  result  from  the  in- 
juries claimed  to  have  been  received? 

In  cases  of  fraud,  real  or  apparent,  the  attention  of  the 
medical  man  should  be  directed  to  the  solution  of  these  two 
questions.  Besides,  where  the  relation  of  cause  and  effect 
are  not  apparent,  the  physician  should  always  be  on  the 
alert  for  other  causes  of  the  trouble.  As  to  pretended  in- 
sanity, common  observation  and  experience,  testify  that 
the  affliction  can  be  readily  and  skillfully  simulated.22 

That  insane  persons  should  attempt  to  conceal  their 
malady  in  certain  stages,  and  even  pretend  to  be  rational, 
is  to  be  expected,  but  the  courts  record  but  few  cases  where 
there  was  a  well  laid  plan  followed  with  any  degree  of  intel- 
ligence by  an  insane  person  to  simulate  sanity.23  Guiteau 
pretended  to  be  sane  notwithstanding  the  plea  of  his  attor- 
ney, but  his  conduct  at  the  trial  cannot  be  regarded  as  an 
attempt  to  conceal  insanity  and  to  appear  sane. 

Possibilities. — Almost  any  disease  or  group  of  symptoms 
may  be  feigned.  When  a  physician  is  called  upon  to  give 
an  opinion  as  to  whether  or  not  a  certain  alleged  injury  or 
disease  is  feigned,  he  must  base  his  opinion  upon  the  rela- 
tion between  certain  facts,  rather  than  upon  a  positive 
knowledge  that  the  conditions  claimed  are  feigned.  His  de- 
cision must  depend  upon  the  relation  between  the  character 
of  the  injury  and  the  conditions  claimed  to  result  therefrom ; 
that  is, 


22  De  Jarnette  v.  Com.,  75  Va.,  867 ;  State  v.  Klinger,  43  Mo.,  127 ;  Ex  partt  Schnei- 
der, 21  D.  C.,  433. 

23  Beg.  v.  Pearce,  9  C.  &  P.,  667. 


266  MEDICAL    JURISPRUDENCE. 

(1)  Whether  or  not  the  conditions  claimed  might  reason- 
ably result  from  the  accident  as  described ; 

(2)  What  is  the  relation  between  the  conditions  claimed 
and  those  which  are  found  upon  examination; 

(3)  The  relation  between  the  alleged  subjective  symptoms 
and  the  injury  or  condition  claimed,  and  could  the  former 
have  been  the  result  of  the  latter ; 

(4)  Whether   the   subjective   symptoms   and   conditions 
claimed  are  regular,  well-defined,  localized  and  character- 
istic ; 

(5)  Are  the  subjective  symptoms  consistent  with  the  ob- 
jective symptoms? 

Contracts  in  Restraint  of  Professional  Activity. 

Not  Favored  in  Law. — Contracts  in  restraint  of  trade,  in- 
dustry, employment,  or  personal  or  professional  activity 
are  not  favored  in  law  because  they  are  considered  as  being 
against  public  policy.  The  law  will  not  permit  any  one  to 
restrain  a  person  from  doing  what  the  public  welfare  and 
his  own  interest  requires  that  he  should  do.24 

Prevalence. — Probably  the  reports  of  every  State  in  the 
Union  contain  adjudicated  cases  in  which  some  physician 
sold  the  good  will  of  his  practice  for  a  consideration,  and 
ancillary  thereto  agreed  not  to  engage  in  the  practice  of  his 
profession  within  a  certain  distance  of  his  former  location, 
within  a  certain  period  of  time. 

Validity. — Where  the  restraint  is  partial  and  reasonable, 
in  good  faith,  and  founded  upon  good  consideration,  such 
contracts  are  valid  and  enforcible.25 

Ancillary  to  Employment. — Agreements  not  to  engage  in 
the  practice  of  the  profession  in  a  certain  place  for  a  definite 


24  Homer  v.  Ashford,   3   Bing.,   322. 

25  Hedge  v.  Lowe,  47  la.,   137;   Boutelle  v.   Smith,   67  111.,   75;   Arnold  v.  Krutzer,   87 
la.,  214;  Dwight  v.  Hamilton,  113  Mass.,   175;  Cook  v.  Johnson,  47  Conn.,  175;  Niles  v. 
Penn,  33  N.  Y.  Supp.,  857;  Homer  v.  Graves,  7  Bing.,  735;  Butler  v.  Burleson,  16  Vt. 
176. 


MISCELLANEOUS.  267 

period  of  time,  are  frequently  ancillary  to  contracts  of  em- 
ployment of  the  covenantor  by  the  covenantee  and,  unless 
void  for  the  want  of  consideration  or  mutuality,  or  for  un- 
reasonableness or  fraud,  will  be  enforced  by  the  courts,  by 
enjoining  the  party  from  practicing  in  violation  of  his  cove- 
nant.26 

Specific  Performance. — Courts  of  equity  will  enforce 
specific  performance  of  such  negative  agreements  by  re- 
straining a  breach  thereof  by  injunction,  prohibiting  the 
covenantor  from  practicing  in  violation  of  his  covenant. 

Reason  for  the  Relief. — The  injunctional  relief  is  based 
upon  the  theory  that  the  covenantee  does  not  have  a  complete 
and  adequate  remedy  at  law,  since  the  latter  action  is  for 
damages  only  and  in  which  he  can  recover  only  what  he  can 
prove.  The  evidence  to  establish  damages  might  not  be 
available,  and,  ordinarily,  would  be  purely  speculative.27 

Contract  in  Writing. — By  all  means  such  contracts  should 
be  in  writing  and  the  restriction  should  not  be  greater  than 
absolutely  necessary  reasonably  to  protect  the  vendee  and 
to  insure  him  that  he  will  get  what  he  contracted  for. 

PROVISIONS  OF  CONTRACT. —  (a)  Time  Limit. — It  is  advis- 
able to  incorporate  a  limitation  as  to  time.  While  such 
limitation  is  not  indispensable,  it  may  become  important  if 
the  limitation  as  to  space  might  otherwise  appear  unreason- 
able.28 

(b)  Assignees,  etc. — It  is  advisable  to  require  the  vendor 
to  agree  not  to  engage  in  the  practice  in  the  vicinity,  nor 
enter  the  employ  of  any  one  there  engaged  in  the  practice, 
and  the  promise  should  run  to  the  vendee  and  his  assigns, 
so  that  the  covenant  may  be  enforced  after  the  death  of  the 
covenantee. 


26  Freudenthal  v.  Espey,  45  Colo.,  488;  26  L.  R.  A.,  961. 

27  Hubbard  v.  Miller,  27  Mich.,  15;  Doty  v.  Martin,  32  Mich.,  462;  Parkinson's  Appeal, 
78  Pa.  St.,  196;  Ellis  v.  Jones,  56  Ga.,  504. 

28  Ocean   Steamer   Navigation   Co.   v.  Winsor,   20   Wall.,   64 ;    Boyce  v.   Watson,    52   111. 
App.,  361;  Feckelstein  Bros.  Co.  v.  Feckelstein,  76  N.  J.  L.,  613;  See  L.  B.  A.,  913,  927. 


268  MEDICAL  JURISPRUDENCE. 

RESTRICTION  MUST  BE  SEASONABLE — COURTS  WILL  NOT 
REFORM  CONTRACT. — The  court  will  not  attempt  to  make  a 
new  contract  for  the  parties  by  fixing  a  reasonable  limit 
within  which  it  will  enforce  the  covenant,  though  such 
reasonable  limitation  can  readily  be  determined.  The  court 
will  enforce  or  annul  the  contracts  made,  but  will  not  under- 
take to  make  a  new  contract  for  the  parties.29 

WHEN  REASONABLE  SUCH  CONTRACTS  WILL  BE  ENFORCED 
ACCORDING  TO  THEIR  SPIRIT. — In  order  to  be  entitled  to  relief 
it  is  not  necessary  that  the  covenantee  prove  that  the  consid- 
eration was  adequate,  or  that  the  covenantor  is  insolvent,  or 
that  the  damage  will  be  irreparable.80 

Illustrations. — Where  a  physician,  for  a  consideration, 
agreed  not  to  practice  medicine  in  the  village  or  vicinity  for 
at  least  the  term  of  five  years,  on  attempting  to  violate  the 
covenant  he  was  restrained  from  practicing  within  ten  miles 
of  the  village  limits.31  An  agreement  by  a  physician  with 
the  purchaser  of  his  residence  and  practice  in  a  country 
town,  not  to  engage  in  the  practice  of  medicine  within  six 
miles  of  his  said  residence,  was  considered  reasonable.32 
Such  agreement  by  physicians,  when  for  a  consideration, 
have  been  held  binding  when  limited  to  twelve  miles,™  fif- 
teen miles,34  and  twenty  miles  35  of  the  then  residence  of 
the  promisor. 

Injunctions. — While  courts  of  equity  will  restrain  parties 
from  affirmative  acts  in  violation  of  their  negative  cove- 
nants, they  will  not  usually  enter  mandatory  injunctions 
which  will  require  performance  of  acts  on  the  part  of  the 


2»  Homer  v.  Graves,  7  Bing.,  734. 

30  Ryan  v.  Hamilton,  205  111.,  191;  Gordon  v.  Mansfield,  84  Mo.  App.,  367;   Beatty  v. 
Goble,  142  Ind.,  329;  McCurry  v.  Gibson,  108  Ala.,  451;  22  Cyc.,  869, 

31  Timmerman  v.  Dever,  52  Mich.,  34. 
82  Linn  v.  Sigsbee,  67  111.,  75. 

S3  McClurg's  Appeal,  58  Pa.  St.,  51. 
34  Miller  v.  Elliott,   1  Ind.,  484. 
85  Butler  v.  Burleson,  16  Vt.,  176. 


MISCELLANEOUS.  269 

covenantor.38  Thus,  where  a  prima  donna  agrees  to  sing  at 
a  certain  theatre  and  promises  not  to  engage  with  a  rival 
house,  the  courts  will  not  require  her  to  appear  as  promised, 
but  they  will  restrain  her  from  warbling  at  a  rival  theatre  in 
violation  of  her  covenant.  The  reason  for  refusing  the 
affirmative  relief  is  because  courts  will  not  enter  decrees 
where  they  cannot  enforce  substantial  compliance  there- 
with.37 

Asexualization  and  Sterilization. 

As  a  Punishment  for  Crime. — Asexualization  by  vasec- 
tomy  or  sterilization  by  salpingectomy,  as  a  penalty  for 
crime  whereof  the  party  has  been  duly  convicted,  is  not  pro- 
hibited by  the  constitutional  provision  against  the  infliction 
of  cruel  and  unusual  punishment.  To  come  within  the  con- 
stitutional inhibition  the  punishment  must  be  both  cruel  and 
unusual.38  "  Cruel  and  unusual  punishments  are  punish- 
ments of  a  barbarous  character  unknown  to  the  common  law. 
The  word,  when  it  first  found  place  in  the  Bill  of  Bights, 
meant  not  a  fine  or  imprisonment,  or  both,  but  such  punish- 
ment as  that  inflicted  by  the  whipping-post,  the  pillory, 
burning  at  the  stake,  breaking  on  the  wheel  and  the  like,  or 
quartering  the  culprit,  cutting  off  his  nose,  ears  or  limbs,  or 
strangling  him  to  death. ' ' 39  The  practice  of  flogging  for 
certain  offenses  has  been  upheld  on  the  ground  that,  while 
cruel,  it  was  not  unusual  at  the  time  of  the  adoption  of  the 
constitution  and  was  not  unknown  to  the  common  law. 
Asexualization  by  vasectomy  as  a  penalty  for  the  crime  of 
rape  was  sustained  because,  while  unusual,  it  was  not  cruel. 
The  evidence  in  the  case  showed  that  the  operation  is  a 
minor  one,  easily  performed,  without  pain  to  the  patient, 


30  Wollensak  v.  Briggs,  20  111.  App.,  50;  Blanchard  v.  B.  B.  Co.,  31  Mich.,  48. 

37  Lumley  v.  Wagner,   1  DeG.,  M.  &  G.,   604 ;  Webster  t>.  Dillon,  3  Jur.  N.   S.,  432 ; 
M.  E.  Co.  v.  Ward,  9  N.  Y.  Supp.,  779 ;  22  Cyc.,  857. 

38  State  t'.  Woodward,  68  W.  Va.,  66 ;  30  L.  B.  A.,  1004. 
89  In  re  O'Shea,  11  Gal.  App.,  575. 


270  MEDICAL    JURISPRUDENCE. 

and  entailing  no  confinement  to  bed  or  even  cessation  from 
employment.40 

To  Prevent  Procreation. — When  applied  to  defectives, 
who  have  committed  no  offense,  for  the  sole  purpose  of  de- 
stroying their  power  of  procreation,  a  different  considera- 
tion arises  and  the  conservatism  of  the  law  may  be  depended 
upon  to  prevent  any  radical  measures  in  this  direction.  All 
citizens  are  entitled  to  the  equal  protection  of  the  law,  and 
no  rights  may  be  impaired  except  by  procedure  according  to 
the  law  of  the  land.  If  such  operation  is  permitted,  the 
sanction  will  come  under  the  guise  of  that  most  flexible  doc- 
trine, the  police  power.  The  right  of  the  State  to  sterilize 
by  salpingectomy  an  epileptic,  has  just  been  denied  by  the 
Supreme  Court  of  New  Jersey.41  The  court  calls  attention 
to  the  fact  that  the  operation  of  salpingectomy  is  a  danger- 
ous one,  requiring  both  sides  to  be  operated  upon  under 
profound  and  prolonged  anesthesia,  and  considered  that  it 
involved  all  the  dangers  to  life  incident  to  the  anesthetic 
and  to  a  serious  surgical  operation.  The  court  said :  ' '  The 
order  with  which  we  have  to  deal  threatens  possibly  the  life 
and  certainly  the  liberty  of  the  prosecutrix,  in  a  manner 
forbidden  by  both  the  State  and  Federal  Constitutions,  un- 
less such  order  is  a  valid  exercise  of  the  police  power.  The 
question  thus  presented  is,  therefore,  not  one  of  those  con- 
stitutional questions  that  are  primarily  addressed  to  the 
legislature,  but  purely  a  legal  question  as  to  the  due  exer- 
cise of  the  police  power.  This  power  is  the  exercise  by  the 
legislature  of  a  State  of  its  inherent  sovereignty  to  enact 
and  enforce  whatever  regulations  are,  in  its  judgment,  for 
the  welfare  of  society  at  large,  in  order  to  secure  or  to  guard 
its  order,  safety,  health  or  morals.  The  general  limitation 
of  such  power,  to  which  the  prosecutrix  must  appeal,  is,  that 


40  State  v.  Peilen,  70  Wash.,  65 ;  41  L.  R.  A.,  418. 

41  Smith  v.  Board — N.  J.  L. — ;  88  Atl.,  963. 


MISCELLANEOUS.  271 

under  our  system  of  government,  the  artificial  enhancement 
of  the  public  welfare  by  the  forcible  suppression  of  the  con- 
stitutional rights  of  the  individual  is  inadmissible.  Some- 
where between  these  two  fundamental  provisions  the  exer- 
cise of  the  police  power  in  the  present  case  must  fall,  and 
its  assignment  to  the  former  rather  than  to  the  latter  in- 
volves consequences  of  the  greatest  magnitude.  For,  while 
the  case  in  hand  raises  the  very  important  and  novel  ques- 
tion, whether  it  is  one  of  the  attributes  of  government  to 
essay  the  theoretical  improvement  of  society  by  destroying 
the  function  of  procreation  in  certain  of  its  members  who 
are  not  malefactors  against  its  laws,  it  is  evident  that  the 
decision  of  that  question  carries  with  it  certain  legal  con- 
sequences having  far  reaching  results.  The  feeble-minded 
and  epileptics  are  not  the  only  persons  in  the  community 
whose  elimination  as  undesirable  citizens  would  or  might  in 
the  judgment  of  the  legislature  be  a  distinct  benefit  to 
society.  If  the  enforced  sterility  of  this  class  be  a  legiti- 
mate exercise  of  governmental  power,  a  wide  field  of  legis- 
lative activity  and  duty  is  thrown  open,  to  which  it  would  be 
difficult  to  assign  a  legal  limit. ' ' 

The  court  held  that  the  classification  of  those  subject  to 
the  operation  was  of  such  a  nature  that  the  persons  included 
within  it  are  not  afforded  the  equal  protection  of  the  laws, 
and  announced  the  doctrine  that  the  State  statute  which 
bears  solely  upon  a  class  of  persons,  selected  by  it,  must  not 
only  bear  alike  upon  all  the  individuals  of  such  class,  but 
that  the  class  as  a  whole  must  bear  some  reasonable  relation 
to  the  legislation  in  question.  The  court  does  not,  however, 
pretend  to  hold  that  the  State  does  not  have  the  right,  under 
its  police  power,  to  order  surgical  operations  upon  its 
citizens  whereby  they  shall  be  rendered  incapable  of  procre- 
ation, if  there  is  a  proper  basis  for  the  classification 
adopted.42 

42  R.  Co.  v.  Ellis,  165  U.  S.,  150. 


272  MEDICAL   JURISPRUDENCE. 

Vaccination. 

Police  Power. — The  police  power  of  the  State  may  be 
exercised  by  the  legislature  wherever  the  application 
thereof  will  reasonably  promote  the  public  health,  safety  or 
welfare,  subject  only  to  constitutional  limitations,  and  if 
the  latter  are  not  transgressed  the  courts  will  not  interfere 
to  prevent  enforcement  of  the  legislative  will.43  The  police 
power  is  that  inherent  and  plenary  power  in  the  State  over 
persons  and  property,  when  expressed  in  the  legislative 
will,  which  enables  the  people  to  prohibit  all  things  inimical 
to  the  comfort,  safety,  health  and  welfare  of  society,  and  is 
sometimes  spoken  of  as  "the  law  of  overruling  neces- 
sity."44 

Statutory  Provisions  for  Vaccination. — Compulsory  vac- 
cination has  not  been  enforced  in  the  United  States.  A  re- 
quirement for  vaccination  is  upheld  as  a  valid  exercise  of 
the  police  power  by  the  legislature  but  our  laws  do  not  go 
to  the  extent  of  requiring  the  authorities  forcibly  to  perform 
the  operation  on  the  recalcitrant  citizen  but  merely  provide 
a  penalty  for  failure  to  comply  with  such  requirements.  In 
some  jurisdictions  boards  of  health  have  authority  con- 
ferred upon  them  by  the  legislature  to  order  under  penalty 
the  vaccination  of  all  citizens  wherever  it  may  be  deemed 
necessary  to  public  health  and  safety  and  the  general  wel- 
fare.45 

Necessity. — The  presence  or  reasonable  apprehension  of 
smallpox  in  the  community  is  a  sufficient  necessity,  under 
the  law,  for  promulgating  the  requirement.46 

Vaccination  a  Preventative. — The  courts  do  not  base 
their  conclusions  on  a  finding  of  fact  that  vaccination  is  a 
preventative  of  smallpox  but  they  take  judicial  notice  of  the 


43  Viemeister    v.    White,    179    N.    Y.,    235. 

44  Town  v.  Cemetery  Co.,   70  111.,  191,   194. 

45  Commonwealth  v.  Jacobson,   183  Mass.,  242;   197  U.  S.,  11;   17  L.  R.  A.,  709. 

46  Potts   v.    Breen,    167    111.,    67. 


MISCELLANEOUS.  273 

fact  that  it  is  the  common  belief  of  the  people  that  vaccina- 
tion is  a  preventative.47 

Opposing  Theories.— The  courts  will  take  judicial  notice 
of  the  fact  that  there  are  opposing  theories  with  regard  to 
the  propriety  and  effect  of  vaccination,  and  they  presume 
that  the  legislature  when  enacting  such  a  law  knew  of  the 
theory  against  vaccination  and  deliberately  adopted  the 
opposite  theory,  and  the  courts  will  not  revise  their  dis- 
cretion in  that  respect.48 

Public  Schools. — The  exclusion  of  a  child  from  a  public 
school  by  a  local  board  by  reason  of  a  refusal  to  be  vacci- 
nated is  justified  when  such  extremity  is  necessary  or 
reasonably  appears  to  be  necessary,  to  prevent  the  spread  of 
smallpox,  because  of  an  existing  or  actually  threatened  epi- 
demic of  the  disease,  and  conversely,  a  rule  adopted  by  a 
State  Board  of  Health  compelling  vaccination  of  all  chil- 
dren as  a  prerequisite  to  their  right  to  attend  public  schools 
is  unreasonable  when  smallpox  does  not  exist  in  the  com- 
munity, and  when  there  is  no  reasonable  cause  to  apprehend 
its  appearance.49  In  the  case  last  cited  the  decision  of  the 
court  was  based  upon  the  fact  that  the  legislature  had  not 
clothed  the  board  with  any  authority  to  promulgate  such 
an  order.  Doubtless  the  legislature  may  provide  for  vacci- 
nation as  a  condition  precedent  to  the  right  to  attend  public 
schools  irrespective  of  the  presence  or  threatened  appear- 
ance of  smallpox  in  the  community  or  State,50  and  some 
courts  have  held  that  the  legislature  may  delegate  such 
power  to  local  boards.51 

The  enforcement  of  such  requirement  has  frequently 
been  restrained  by  the  courts  and  the  orders  annulled  be- 


47  Viemeister  v.   White,    179   N.  Y.,   235;    1  A.   0.,    334. 

48  Com.    v.   Jacobson,    183    Mass.,    242. 

49  Potts   v.   Breen,    167   111.,    67. 

GO  Lawton  v.  Steele,  152  U.  S.,  136;  Morris  v.  Columbus,  102  Ga.,  792. 
51  Bissell   v.   Davidson,    65    Conn.,    183. 


274  MEDICAL    JURISPRUDENCE. 

cause  of  the  want  of  authority  in  the  particular  board  pro- 
mulgating the  requirement.52 

Some  courts  have  taken  the  position  that  a  general  grant 
of  power,  in  broad  and  comprehensive  terms,  to  do  the  acts 
and  make  all  rules  and  regulations  necessary  for  the  preser- 
vation of  the  public  health,  carries  with  it,  by  necessary 
implication,  the  power  to  enforce  in  cases  in  which  the  neces- 
sity arises  a  regulation  requiring  children  to  be  vaccinated 
as  a  condition  to  their  admission  or  continued  use  of  the 
public  school.53 

Charitable  Institutions. 

Liability  for  Negligence  of  Employes. — Where  due  care  is 
used  in  the  selection  of  its  employes,  a  private  charitable 
hospital,  conducted  for  benevolent  and  philanthropic  pur- 
poses, is  not  responsible  to  a  patient  for  damage  received 
through  the  unskillfulness  or  carelessness  of  servants,  at- 
tendants or  physicians  in  charge,  even  though  the  patient 
paid  for  the  services  given.54  The  same  rule  applies  to  a 
school  of  instruction  supported  by  charity,  and  where  all 
fees  for  tuition  and  other  income  must  be  used  for  the  ben- 
efit of  the  institution,  and  where  no  part  of  the  same  can  be 
distributed  to  any  one  as  profit.55  A  city,  county  or  State 
does  not  possess  power  to  operate  a  hospital  for  revenue 
and,  therefore,  cannot  be  made  liable  for  the  negligence  of 
persons  employed  about  the  hospital,  even  though  the  au- 
thorities are  unlawfully  conducting  the  institution  for 
revenue.56  Where  the  hospital  is  a  private  institution  and 
conducted  for  profit,  the  institution  is  liable  for  such  negli- 
gence.57 


52  People    v.    Board,    234    111.,    422. 

53  Blue  v.   Beach,    155   Ind.,    121. 

54  Benton  v.  City  Hospital,  140  Mass.,  13 ;  Duncan  v.  Neb.  S.  &  B.  Asso.,  92  Neb.,  162. 

55  Parks  v.  N.  W.   University,   218   111.,   381;   4  A.   C.,   103;   Farrigan   v.   Pevear,   193 
Mass.,   147;   7  L.  B.  A.,   48. 

56Tollefson   v.   Ottawa,   228   111.,    134;    4   L.   B.   A.,    269. 
57  Stanley   v.    Schumperl,    117   La.,    255;    8   S.   A.   C.,    1044. 


MISCELLANEOUS.  275 

Inmates  of  Public  Hospitals. 

Neither  the  State  which  operates  an  insane  asylum,  nor 
the  superintendent  who  has  control  over  the  same  is  liable 
to  a  party  who  is  injured  by  an  inmate.58 

Jury  Service. 

Exemption. — The  exemption,  by  statute,  of  physicians 
from  jury  duty  is  very  general  in  the  United  States,  and 
such  laws  are  usually  held  to  be  constitutional ; 59  but  a  dif- 
ferent view  has  been  taken  in  Tennessee,  and  sucn  a  statute 
was  held  to  be  class  legislation.60 

Where  such  exemption  is  allowed,  the  courts  construe  it 
to  be  a  personal  privilege  which  must  be  claimed  by  the 
physician  and  which  may  be  waived  by  him.  Such  privi- 
lege furnishes  the  parties  to  the  litigation  no  ground  for 
challenge  of  him  as  a  juror,  nor  for  objection  to  the  verdict 
in  which  he  participates.61 

Libel  and  Slander. 

The  utterance  of  written  or  printed  words  which  impute 
to  a  physician  ignorance,  incompetence  or  a  general  want  of 
professional  knowledge  and  skill  is  an  actionable  wrong, 
without  proof  of  special  damages.  The  language  must 
refer  to  the  physician  in  his  professional  capacity.62  How- 
ever, a  person  who  is  practicing  osteopathy  without  a  license 
cannot  recover  as  for  a  libel  for  being  called  a  quack  and 
charlatan.63 

Gifts  and  Legacies. 

The  relation  of  a  physician  to  his  patient  is  one  of  trust 
and  confidence  and  the  former  occupies  the  dominant  posi- 


58  Leavell  v.  W.  Ky.  A.  I.,  122  Ky.,  213;  Clough  v.  Worsham,  32  Tex.  Civ.  App.,  187. 

59  Dunne  v.  People,   94  111.,    120. 

60  Neeley  v.   State,  4  Lea.    (Tenn.),   316. 

61  People  v.  Owens,   123   Cal.,   482. 

62  Nelson   v.   Borchenius,    52   111.,    236;    20   A.   C.,   482. 

63  Lathrop   v.    Sundberg,    62    Wash.,    136. 


276  MEDICAL   JURISPRUDENCE. 

tion.  The  general  principles  of  law  governing  confidential 
relations  apply.  Courts  will  scrutinize  with  great  care  any 
transaction  between  a  physician  and  his  patient,  favorable 
to  the  physician.  The  law  regards  the  patient  as  being  in  a 
subordinate  position  easily  susceptible  to  the  wishes  of  the 
physician.  The  relation  does  not  per  se  forbid  the  accept- 
ance by  a  physician  of  a  gift  or  conveyance  from  his  patient, 
but  the  burden  is  on  the  donee  to  prove  that  such  gratuity 
was  fairly  and  honestly  obtained  without  any  undue  influ- 
ence and  that  the  entire  transaction  was  free  from  all  fraud 
and  above  suspicion.  The  same  rule  applies  where  a  patient 
makes  a  will  in  favor  of  the  physician,  and  especially  when 
made  in  the  presence  of  the  latter.64 


64  Unruh  v.  Lukens,   166  Pa.  St.,  324;  Audenreid's  Appeal,   89  Pa.  St.,   114. 


INDEX 


INDEX 


Abdominal  organs,  in  infanticide,  250 
Abortion,  183 

advice  of  physician,  189 

to  procure,  185 

attempt  to  procure,  185 

burden  of  proof,  188 

circumstantial  evidence,  187 

common  law,  183 

consent  of  woman,  184,  190 

definition,  183 

dying  declaration,  49 

evidence  of  pregnancy,  186 

existence  of  pregnancy,  186 

failure  to  procure,  185 

intent,  184 

knowledge  of  pregnancy,  185 

means  employed,  185 

motive,  184 

necessary,  188,  189 

opinion  evidence,  187 

period  of  pregnancy,  186 

pregnancy,  185,  186 

proof  of  pregnancy,  186 

quick  with  child,  183 

res  gestse,  187 

save  life  of  mother,  188 

soliciting,  62 

stage  of  pregnancy,  186 

statutes,  188 

Absorbent  gauze  cases,  129,  255 
Accident,  149 

death  by,   20 

definition,  149 

liability,  149 

negligence,  149,  150 
Accrual  of  cause,  253 
Act,  independent,  180 
Act,  prohibited,  119 
Actions : 

joint,  179 

survival  of,  181 
Acts,  civil  rights,  158 
Administering  anesthetic,  206 
Administrative  law,  23 
Adverse  statements,  51 
Advertisements,  false,  75,  199 
Affirmations,  32 
Age  of  consent,  242 
Agreement,  80,  109,  143,  181 

279 


280  INDEX. 

Agreement  for  operation,  109 

action,  form  of,  where  no  consent  to  operation,  113 

agent,  surgeon,   119 

consent,  111 

controlling  facts,  115 

damages,  for  unauthorized  operation,  123 

departure,  118 

different  methods,  116 

discretion  of  surgeon,  110 

elements,  109 

emergency,  91,  115 

good  faith,  117 

illustration,  119 

implied  consent,  111 

implied  stipulations,  109 

motive,  111 

nature,  109 

patient  controls,  117 

patient's  request,  117 

presumptions,  113 

prohibited  act,  119 

question  of  fact,  118 

stipulations,  109 

surgeon's  discretion,  110 

unconscious  patient,  91,  115 

whose  consent,  112 
Agreement  not  to  sue,  181 
Anesthetic,  205 

administering,  206,  209 

cold,  205 

definition,  205 

duty,  209 

effects,  205 

general,  205 

legal  responsibility,  208 

local,  205 

malpractice,  208 

presumptions,  207 

rape,  243 

responsibility,  208 

right  to  administer,  206 

selection,  207 

testimony,  209 

Arbitrary  refusal  to  take  case,  156 
Asexualization,  269 
Assignee  of  contract,  267 
Attempt  to  procure  abortion,  185 
Autopsy,  60,  108,  245 

disclosing  information,  60 

fee  for  holding,  108 

poisoning  cases,  245 


Bad  character  of  physician,  99 

Bankrupts,  22 

Beliefs,  medical  care,  263 

Beliefs,  penalizing,  21 

Best  judgment,  140 

Biological  tests  for  blood,  239 


INDEX.  281 


Blood,  235 

accuracy  of  tests,  238 

biological  tests,  239 

chemical  tests,  238 

classification,  235 

color,  235 

composition,  235 

corpuscles,  235 

criminal  law,  239 

definition,  235 

demonstrative  evidence,  241 

hsematin,  237 

haemoglobin,  237 

origin,  235 

oxy-hsemoglobin,  237 

physical  tests,  238 

plasma,  235,  236 

platelets,  235,  237 

quantity,  235 

red  corpuscles,  236 

specific  gravity,  235 

testimony,  240 

tests,  238 

weight,  235 

white  corpuscles,  236 
Blood  stains,  235 

color,  239 

criminal  law,  239 

testimony,  240 
Boards  of  health,  67,  262 
Books,  medical,  as  evidence,  45 
Breach  of  contract,  96 
Breathing,  infanticide,  249 
Burden  of  proof: 

abortion,  186,  188 

contributory  negligence,  166 

infanticide,  251 

insanity,  222 

malpractice,  146,  160,  164 
Business  on  Sunday,  259 


Calcareous  degeneration  of  the  heart,  129 
Calls,  frequency  of,  97 
Care,  132,  138 

agreement  waiving,  143 

burden  of  proof,  160 

carelessness,  139 

definition,  138 

degree,  138 

established  mode,  145 

experimentation,  145 

failure  to  cure,  142 

gratuitous  services,  146 

highest,  139 

implied,  132 

misconduct,  139 

non-professional,  146 

ordinary,  139 


INDEX. 

presumption,  142 

relative  term,  138 

results,  142 

specialists,  144 

tests,  139 

unlicensed  practitioner,  147 

usual,  139 

volunteer,  146 

Carelessness,  never  excused,  139 
Case,  refusal  to  take,  156 
Cases  on  fraud,  199 
Cause  and  effect,  124 
Certainty  of  proof,  202 
Causes  of  death,  infanticide,  250 
Character,  license,  67 
Character  of  physician,  74,  99 
Charge  for  services  (see  compensation),  93 
Charges  to  revoke  license,  76 
Charitable  institutions,  274 
Chastity  in  rape  cases,  243 
Christian  Science,  167,  263 
Choice,  212,  218 
City  license,  67 

Circulatory  organs,  infanticide,  249 
Civil  law,  21 
Civil  malpractice,  148 
Civil  rights  acts,  158 
Coagulation,  237 
Cold  as  anesthetic,  205 
Color  of  blood,  235,  239 
Communication  of  infectious  diseases,  98 
Communications,  privileged,  55 
Compensation,  93 

agency  of  minor,  104 

agreement,  93 

agreement  to  cure,  96 

bad  character,  99 

benefit  to  patient,  86,  94 

bill,  differing,  etc.,  99 

character,  96 

charge  to  other  patients,  99 

charge  for  previous  services,  98 

charge  by  other  physicians,  99 

consultant,  105 

defenses,  104 

detriment  to  physician,  86,  95 

different  bill,  99 

emergency,  91,  115 

expert  witness,  105 

extra  for  extra  services,  107 

family  expenses,  103 

financial  standing,  100 

frequency  of  visits,  97 

history,  93 

husband  and  wife,  102 

husband  selects  physician,  102 

income  of  physician,  99 

income  of  patient,  100 

infectious  disease,  98 

judgment  for  fee,  effect,  105 


INDEX.  283 


license  presumed,  100 

limitations,  258 

malpractice,  94,  104,  258 

mother  liable,  104 

nature  of  remedies  disclosed,  101 

necessaries,  102 

no  agreement,  94 

opinions,  101 

parent  and  child,  103 

pecuniary  circumstances,  99 

post-mortem,  108 

previous  charges,  98 

professional  standing,  98 

proper  treatment,  94 

proof,  98,  101 

ratification,  104 

remedies  disclosed,  101 

results,  as  affecting,  94 

special  agreement,  96 

special  preparation,  107 

treatment,  proper,  94 

unconscious  patient,  91,  115 

unlicensed  practitioner,  100 

value,  94 

value,  question  of  fact,  98 

visits,  frequency,  97 

what  shown,  98 

what  not  shown,  99 

witness  fees,  105 
Competency  of  evidence,  32 
Competent  to  practice,  67 

Conditions  of  the  relation  imposed  by  law,  132 
Confidence,  195 

Confidential  relation,  194,  196 
Consent,  age  of,  242 
Consent  to  abortion,  184,  190 
Consent  to  operation,  111 

implied,  111 

necessary.  111 

whose,  112 

Consideration,  contract,  85 
Contagious  disease,  carrying,  98 
Contracts,  80 

agreement  for  surgical  operation,  109 

assignee,  267 

benefit  to  promisor,  86,  94 

breach,  94 

compensation,  93 

consideration,  85 

constitutional  right,  87 

definition,  80 

delivery,  83 

detriment  to  promisee,  86 

duty,  compared,  81 

equivalence,  85 

express,  81,  83 

guaranty,  88 

illustrations,  81 

implied,  81,  109 

infants,  84,  85 


284  INDEX. 

injunctions,  268 

kinds,  81,  84 

minors,  84 

mutuality,  84 

non  compi  menti,  84 

not  to  sue,  181 

nudum  pactum,  86,  88 

operation,  109 

parties,  84 

promise  for  promise,  86 

ratification,  104 

receipt,  88 

release,  89 

restraint  of  practice,  266 

right  to  contract,  87 

signing  written  contract,  87 

specific  performance,  267 

Sunday,  259 

surgical  operation,  109 

validity,  87,  266 

written,  83 

Contractual  relations,  80 
Contributory  negligence,  151 

assistant,  154 

burden  of  proof,  165,  166 

classification,  152 

definition,  151 

effect,  151 

inevitable  results,  153 

patient's  negligence,  152 

reason  for  rule,  151 

relation,  152 

temperament,  154 
Contribution,  180 
Corpuscles,  235 
Coroner,  261 

civil  liability,  262 

definition,  261 

duties,  262 

slander,  262 
Courts,  27 

Courts  and  physician,  25 
Crime,  18 

Criminal  action  and  civil  suit,  23 
Criminal  law,  18 

insanity  defense,  217 
Criminal  malpractice,  182,  190 
Cross-examination  of  expert,  44 
Cruel  punishments,  21,  269 
Cure: 

failure  to,  95,  160 

no  cure,  no  pay,  96 


Damages,  123,  154,  172,  179,  204,  229 
assessment,  174 
compensatory,  172,  229 
contingencies,  176 
death,  178,  179 


INDEX.  285 


elements,  174 

excessive,  176 

exemplary,  172 

false  pretenses,  204 

future  loss,  176 

insane  persons,  229 

measure,  174 

mistakes  of  physician,  175 

mitigation,  176 

nominal,  172 

operation,  wrong,  123 

original  injury,  176 

patient's  poor  health,  176 

presumptions,  173 

punitive,  172 

temperament,  154 

torts  by  insane,  229 

unauthorized  operation,  123 

vindictive,  172 
Death: 

accident,  20 

malpractice,  178 

natural  causes,  250 

wounds,  232 
Debt: 

imprisonment  for,  21,  22 
Declarations : 

against  interest,  51 

dying,  46 

to  physician,  52 

Defectives,  asexualization  of,  270 
Defenses  to  malpractice  suit,  171 
Definitions : 

abortion,  183 

accident,  149 

care,  138 

contract,  80 

courts,  27 

crime,  18 

dying  declaration,  46,  48 

evidence,  32 

expert,  39 

fraud,  191 

hypothetical  question,  43 

infanticide,  245 

insanity,  214,  217 

jurisdiction,  27 

law,  17 

legal  right,  27 

malpractice,  148 

medical  jurisprudence,  26 

negligence,  149 

opinion  evidence,  36 

poison,  244 

police  power,  272 

presumption,  125 

privileged  communication,  55 

rape,  242 

res  ipsa  loquitur,  127 

testimony,  32 


286  INDEX. 

trial,  30 

wound,  231 

Delirium  tremens,  221,  226 
Demonstrative  evidence,  241 
Dentist,  130 

Dentistry,  physician  practicing,  72 
Departure  from  agreed  operation,  118 
Detriment  to  physician,  95 
Diagnosis,  160,  161 
Diligence,  254 
Discretion,  delegating,  72 
Discretion  of  surgeon,  110 
Disease : 

contagious,  98 

feigned,  264 
Druggist,  155,  180 

Drunkenness   (see  intoxication),  156,  221,  226 
Due  process  of  law,  73 
Dying  declaration,  46 

abortions,  49 

E 

Effect: 

and  cause,  124 

opinion  evidence,  36 

signing  contract,  87 

testimony,  39 

Emergency  operation,  91,  115 
Employment,  91 

accepting  services,  91 

by  third  party,  91 

master  for  servant,  92 

unconscious  patient,  91 
Epilepsy,  222,  270 
Equivalence,  85 
Established  treatment,  145 
Evidence,  32 

abortion,  186 

books,  45 

circumstantial,  187,  247 

competency,  32 

demonstrative,  241 

hearsay,  46 

hypothetical  question,  43 

infanticide,  247,  248 

malpractice,  160 

medical,  242,  248,  251 

medical  books,  45 

opinion,  33 

rape,  244 

rules,  33 

Exemption  from  jury  duty,  275 
Exhibiting  injury  to  jury,  168 
Expense,  family,  103 
Experimentation,  145 
Express  contract,  81,  83 
Expert  testimony,  weight  and  effect,  39 
Expert  witnesses,  39 

basis  of  opinion,  40 


INDEX.  287 


conduct,  40 
cross-examination,  44 
definition,  39 
history,  40 
physicians,  25,  40 
preliminary  inquiry,  39 
qualifications,  39 
special  knowledge,  40 
subjects  of  inquiry,  41 
weight  of  testimony,  39 


Failure  to  cure,  160 
Failure  to  relieve,  95 
Fair  dealing,  198 
False  advertisements,  75,  199 
False  representations,  191 

actionable,  194 

advertisements,  75,  199 

caveat  emptor,  193 

certainty  of  proof,  202 

confidence,  195 

corrupt  motive,  192 

damages,  204 

definition,  191 

effect,  191 

elements,  203 

fair  dealing,  198 

false  pretenses,  197 

fraud,  191 

good  faith,  198 

illustrations,  199 

improvement,  198 

intent,  191 

knowledge,  196 

materiality,  193 

measure  of  damages,  204 

misstating  improvement,  198 

motive,  192 

opinion,  193 

pretenses,  197 

proof,  202 

relation  of  parties,  194 

remedies,  204 

special  knowledge,  196 

trust,  195 

Family  expense,   103 
Fee  (see  Compensation),  91 
Feigned  diseases,  264 
Former  judgment,  171,  172 
Fraud,  191 

Free  services,  malpractice,  146 
Frequency  of  visits,  97 


Gauze,  surgical  operation,  129,  255 
Gestation,  41,  186 
Gifts,  275 


288  INDEX. 

Good  faith,  34,  62,  149 
Gratuitous  services,  146 
Guarantor,  physician  not,  95,  96,  156 
Guaranty,  88 


Hsematin,  237 

Haemoglobin,  237 

Hearing  to  revoke  license,  78 

Hearsay  evidence,  46 

Homicide,  217,  229 

Hospitals,  274 

Hydrostatic  test,  249 

Hymen,  rupture  of  in  rape,  244 

Hypnotism,  rape,  243 

Hypothetical  question,  43 


Identity  of  mother,  251 
Ignorance,  132 
Immorality,  license,  74,  75 
Implied  conditions,  109,  132 
Implied  contract,  81,  109 
Imposing  on  privacy,  58 
Imprisonment  for  debt,  22 
Improper  treatment,  94,  148 
Improvement,  misstating,  198 
Independent  acts,  180 
Independent  existence,  248 
Infanticide,  245 

abdominal  organs,  250 

breathing,  249 

burden  of  proof,  251 

causes  of  death,  250 

circulatory  organs,  249 

definition,  245 

duty  of  mother,  246 

funis,  248 

hydrostatic  test,  249 

identity  of  mother,  251 

independent  existence,  248 

intent,  247 

medical  evidence,  248 

natural  causes  of  death,  250 

prevalence,  247 

proof,  burden  of,  251 

respiratory  organs,  249 

statutes,  252 

still-born,  251 

umbilical  cord,  248 
Infants  (see  Minors),  84,  102,  263 
Infection,  131,  165 
Infectious  disease,  98 
Injunction,  268 
Injurious  results,  142 
Injury  in  malpractice,  148 
Inquisition  of  sanity,  162 
Insanity : 


INDEX.  289 


absence  of  motive,  216 
anger,  223 

burden  of  proof,  222 
cerebral  cortex,  211 
choice,  212,  218 
civil  liability,  229 
common  law,  217 
continuity,  215 
compensatory  damages,  230 
contracts,  224 
control,  212,  218 
criminal  intent,  217 
criminal  law,  217 
damages,  229 
deeds,  227 
definition,  214,  217 
degree  of  proof,  222 
delirium  tremens,  221,  226 
delusion,  213,  220,  228 
depravity,  222 
drunkenness,  221,  226 
emotional,  223 
epilepsy,  222 
evidence,  215 
exemplary  damages,  230 
expert,  216 

functional  disturbances,  213 
general  practitioner,  216 
hallucination,  213 
homicide,  229 
illusion,  213 
impaired  faculties,  227 
impulse,  223 

insane  delusion,  220,  228 
intellect,  211 
intent,  217 

intoxication,  221,  226 
irresistible  impulse,  223 
kleptomania,  223 
knowledge  of  right,  218 
law,  214 
marriage,  226 
memory,  211,  228 
mental  capacity,  227 
mental  faculties,  211 
moral,  222 
moral  depravity,  222 
motive,  216 
murder,  217,  229 
necessaries,  224 
particular  act,  218 
passion,  223 
perversion,  222 
power  of  control,  218 
presumption  of  sanity,  215 
progress  of  law,  213 
proof  required,  222 
reason,  217 
reasonable  doubt,  222 
right  and  wrong,  218 


290  INDEX. 

sensibility,  211 

somnambulism,  221 

sound  mind  and  memory,  228 

subjects  of  inquiry,  219 

suicide,  216 

temper,  223 

tests,  217 

torts,  229 

tremens,  221,  226 

undue  influence,  228 

wild  beast  test,  218 

will,  211 

wills,  227 
Intellect,  211 
Intoxication,  156,  221,  226 

contracts,  226 

crimes,  221 

delirium  tremens,  221,  226 

malpractice,  156 

marriage,  226 
Itinerant  patients,  71 
Itinerant  physicians,  66 
Itinerant  vendors,  66 


Joint  tort  feasors,  179 

agreement  not  to  sue,  181 

contribution,  180 

independent  acts,  180 

purchase  of  peace,  181 

satisfaction,   180 

survival  of  action,  181 
Judgment,  140 

agreement  waiving,  143 

best,  140 

correct,  141 

different  methods,  141 

mistake,  142 

presumption,  142 

rule,  140 

Judgment  of  court,  171,  172 
Jurisprudence : 

medical,  definition,  26 
Jurisdiction,  27 
Jury,  31,  275 
Jury  service,  275 
Jury  trial,  30,  31 

revocation  of  license,  78 

right,  30 


Kleptomania,  223 
Knowledge  of  injury,  255 
Knowledge  of  pregnancy,  185 
Knowledge  of  right,  218 


Latent  injuries,  255 
Law,  17 


INDEX.  291 


administrative,  23 

civil,  18,  21 

classes,  18 

criminal,  18 

definition,  18 

municipal,  18 

prevalence,  17 

substantive,  23 
Law  of  the  land,  73 
Legacies,  275 
Legal  rights,  27 

Liability  for  independent  act,  180 
Libel,  275 
License,  63 

boards,  67 

calling,  liberty  to  pursue,  63 

Christian  Science,  69 

city  license,  67 

common  law  right,  63 

control  by  state,  64 

delegating  discretion,  72 

dentistry,  physician  practicing,  72 

due  process,  73 

grounds  for  revoking,  74 

how  regulated,  67 

itinerant  physicians,  66 

itinerant  vendors,  66 

optician,  72 

practice,  not  property,  64 

practicing  medicine,  what  is,  69 

practicing  medicine,  without,  69 

public  welfare,  64 

requirements,  67,  68 

reserved  rights,  72 

resident  practitioner,  72 

revocation,  72 

rights  to  practice,  63 

soliciting  patients,  65 

state  may  control,  64 

statutes,  67 

vested  rights,  73 
Limb,  fractured,  shorter,  143 
Limitations,  253 

accrual  of  cause,  253 

continuing  obligation,  256 

continuing  wrong,  257 

diligence,  254 

disability,  258 

fee,  258 

knowledge  of  injury,  255 

latent  injuries,  255 

license,  79 

malpractice  cases,  253 

minors,  258 

period,  253 

persons  under  disability,  258 

policy  of  the  law,  253 

specified  service,  254 

statutes  of,  253 

suit  for  fee,  258 


292  INDEX. 

Lord  Campbell's  Act,  178 


M 


Malingerers,  264 
Malpractice,  94,  104,  148,  258 

accident,  149 

accident  and  negligence,  150 

action,  survival  of,  181 

agreement  excusing,  143 

anesthetic,  129,  160,  208 

assistance,  154 

assistants,  155,  180 

burden  of  proof,  164 

Campbell's  act,  178 

carelessness,  139 

causes,  more  than  one,  165 

Christian  Science,  167 

civil,  148,  190 

civil  rights  acts,  158 

communication  of  disease,  98 

compensation,  94,  104,  256 

contingencies,  176 

contribution,  180 

contributory  negligence,  151 

criminal  liability,  182,  190 

damages,  172 

death  from,  178 

defenses,  171 

definition,  148 

dentist,  130 

diagnosis,  160,  161 

different  schools,  166 

druggist,  155,  180 

established  mode,  145 

excused,  never,  139 

exhibiting  injury,  168 

experimentation,  145 

failure  to  cure,  156 

failure  to  obey,  154 

good  faith,  149 

gratuitous  services,  146 

guarantor,  156 

guess  at  liability,  165 

how  proven,  163 

illustrations,  161. 

improper  treatment  and  injury,  148 

independent  acts,  154,  180 

independent  treatment,  154 

infection,  165 

infectious  disease,  98 

injurious  results,  156 

injury,  148 

inquisition  of  sanity,  162 

intent,  149 

instructions,  154 

intoxication,  156 

joint  tort  feasors,  179 

law,  a  question  of,  169 

matron,  155 


INDEX.  293 


mistake  by  patient,  172 

mistake  in  diagnosis,  160 

mitigation,  176 

negligence,  149 

nurses,  155 

obey  instructions,  154 

other  causes,  165,  171 

other  vocations,  156 

partners,  155 

patient,  negligence  of,  152,  172 

preponderance  of  evidence,  164 

presumptions,  173 

probable  causes,  165 

prompt  response,  169 

proof  necessary,  160 

refusal  to  treat,  156 

relation  begins,  168 

relation  ends,  169 

relation  to  injury,  148 

response  to  call,  169 

rule,  reason  for,  151 

sanitary,  inquisition,  162 

satisfaction  of  claim,  180 

schools  of  medicine,  166 

services  free,  146 

specialists,  144 

substitute,  156 

suit  in  tort,  177 

suit,  only  one,  172 

survival  of  action,  181 

temperament,  154 

tort,  177,  229 

unlicensed  practitioner,  147 

usual  results,  163 

usual  treatment,  145 

vocations,  other,  156 

volunteer,  146 

wrong  diagnosis,  160 

X-ray,  failure  to  take,  163,  167 
Materiality  of  representations,  193 
Matron,  155 

Medical  jurisprudence,  definition,  26. 
Medical  books  as  evidence,  45 
Medical  services,  102,  263 

beliefs,  264 

Christian  Science,  263 

duty  to  employ,  263 

necessaries,  102 

religious  belief,  264 
Medical  testimony,  subjects  of,  41 
Mental  faculties,  211 
Minors,  84,  102,  263 

agent  of  parent,  104 

duty  of  parent,  263 

medical  services,  102 

necessaries,  102 
Miscellaneous  practitioners,  70 
Misconduct,  139 
Mistake  in  diagnosis,  160 
Mitigation  of  damages,  176 


294  INDEX. 

Moral  character,  license,  67 
Moral  qualities,  19 
Morality,  license,  67 
Municipal  law,  18 

civil,  18 

classes,  18 

conforms  to  civilization,  18 

crime,  18 

criminal,  18 

definition,  18 
Murder,;  2 17,  229 

N 

Natural  causes  of  death  in  infanticide  cases,  250 
Necessaries,  102,  263 

definition,  102 

husband  and  wife,  102 

husband  selects  physician,  102 

medical  services,  102,  263 

minors,  103 

mother  liable  for,  103 

value,  102 

Necessary  to  save  mother's  life,  188,  189 
Necessity,  188,  189,  260 
Negligence  (see  Malpractice),  149 
Negligence,  never  excused,  139 
No  cure,  no  pay,  96 
Notice,  28,  77 

jurisdictional,  28 

to  revoke,  77 
Nudum  pactum,  86 
Nurse,  negligence  of,  155 


Oath,  32 

Objective  symptoms,  44 
Obligations  imposed  by  law,  132 
Obligations,  liability,  133 
Operation,  109 

agreement,  109 

consent,  111,  112 

controlling  facts,  115 

departure,  118 

emergent,  91,  115 

presumptions,  113 

prohibited  act,  119 

request  of  patient,  117 

unauthorized,  111,  119 
Operator's  duty,  114 
Opinion  evidence,  33 
Opinions,  33 

basis,  40 

effect,  36 

expert  witness,  36 

not  favored,  36 

ordinary  witness,  33 

reasons  for  admitting,  34 

special  knowledge,  40 


INDEX.  295 


subject-matter,  36 

weight,  34 
Optician,  72 
Ordeal,  trial  by,  30 
Ordinary  witness,  33 
Oxy-hsemoglobin,  237 


Pain,  statement  of,  53 
Parent  and  child,  102,  263 
Particular  mode  of  treatment,  145 
Patient's  negligence,  152 
Patient's  right,  117 
Pay  (see  Compensation),  91 
Peace,  purchase  of,  181 
Pecuniary  circumstances : 

of  patient,  100 

of  physician,  99,  100 
Penalties,  20 
Penalizing  beliefs,  21 
Period  of  pregnancy,  41,  186 
Physicians  and  courts,  25,  48 
Physicians  as  experts,  48 
Plasma,  235,  236 
Platelets,  235,  237 
Poisoning,  244 

common  law,  245 

definition,  244 

malice,  244 

post-mortem,  245 
Police  power,  64,  270,  272 
Policy  of  the  law,  253 
Post-mortem,  60,  245 
Practice  is  not  property,  64 
Practicing  medicine,  what  is,  69 
Pregnancy,  41,  186 
Preponderance  of  evidence,  129,  164 
Presumption  of  good  faith,  62 
Presumptions : 

absorbent  gauze  cases,  130 

broken  jaw,  130 

brooch  in  tooth,  130 

care,  142 

cause  and  effect,  124 

definition,  125 

different  causes,  128 

fact,  125 

failure  to  cure,  142 

failure  to  discover  rupture,  143 

gauze  cases,  129 

illustrations,  128 

infection,  131 

injurious  results,  142 

judgment,  142 

kinds,  125 

law,  125 

license,  when,  100 

life,  continuing,  186 

negligence,  142 


296  INDEX. 

other  causes,  128 

results  injurious,  142 

skill,  142 

sponge  cases,  129 

strength  of,  125 

surgical  operations,  113 

tooth  down  throat,  131,  143 

upon  presumption,  126 
Prevalence  of  infanticide,  247 
Prevalence  of  law,  17 
Preventing  procreation,  270 
Privacy,  imposing  upon,  58 
Privileged  communications,  55 

at  common  law,  55 

autopsy,  60 

criminal  purpose,  61 

criminals,  61 

definition,  55 

duty  of  physician,  60 

entirety,  59 

good  faith,  62 

incidentals,  57 

interpretation  of  statutes,  56 

party  to  suit,  58 

physician   to    patient,   58 

presumption  of  good  faith,  62 

privacy,    58 

provisions  of  statutes,  55 

publishing  operation,  58 

purpose  of  statutes,  56 

statutes,  55 

waiver   of  privilege,  59 
Procedure,  29 

Proceedings  to  revoke  license,  76 
Process,   due,   73 
Procreation,  270 
Professional  character,  99 
Professional  standing,  98 
Progress,   144 

Proper  treatment  required,  94 
Property,  practice  is  not,  64 
Public  necessity,  64 
Public  policy,  132 
Public  schools,  vaccination,  273 
Public  welfare,   64 
Punishments,  20,  21,  242,  269 
Purchase  of  peace,  181 


Qualification : 

expert,  39 

license,  67 
Qualities  of  acts,  19 
Question,  hypothetical,  43 
Quick  with  child,  183 


Rape,  242 

age  of  consent,  242 
anesthetic,  243 


INDEX.  297 


chastity,   243 

consent,  242 

definition,  242 

force,   243 

fraud,   243 

hymen,  244 

hypnotic  influence,   243 

physical   violence,   243 

punishment,  242 

rupture  of  hymen,  244 

signs  of,  244 

threats,  243 

violence,    243 
Ratification,   104 
Receipt,   88,   90 
Red  corpuscles,  236 
Refusal  to  take  case,  156 
Release,    89 
Relief,  95,  160 
Religious  belief,  264 

Representations,    false,     (see    False    Representations),    191 
Requirements  for  license,  67 
Res  gestse,   51,    187 
Res   ipsa   loquitur,    124 

applicable,  when,   127 

applicable,  when  not,  131 

application,    127 

basis,   124 

broken  jaw,  130 

brooch  in  tooth,  130 

cause  and  effect,  124 

convictions,  126 

definition,  124 

dentists,  130 

different  causes,  128 

effect  and  cause,  124 

gauze  cases,  129 

history,  128 

illustrations,  128 

infection,  131 

jaw  broken,   130 

maxim,  124 

mental    convictions,    126 

operations,  113 

other  causes,  128 

physicians,  129 

presumptions,    125 

probable  causes,  128 

reason,   127 

several  causes,  128 

sponge  cases,  129 

submaxillary,  broken,  130 

when  applicable,  127 

when   not  applicable,   131 

X-ray  cases,  129 
Restraint  of  practice,  266 

ancillary,    266 

assignees,  267 

employment,  266 

illustrations,  268 


298 

injunctions,   268 

not    favored,    266 

prevalence,  266 

provisions,    267 

reasonable,  268 

relief,  267 

space   limit,  266.   268 

specific  performance,  267 

time,  267 

validity,  87,  266 

written  contract,  267 
Results,  95.  142 
Revocation  of  license,  72 

charges,    76 

criminal  prosecution,  79 

decision,   effect   of,   78 

due  process,  73 

grounds,    74 

hearing,   78 

jury   trial,    78 

limitations,   statutes   of,   79 

notice,  77 

proceedings,  76 

record,  78 

reserved  right,  72 

statutes  of  limitations,   79 

trial   by  jury,   78 

vested  right,  73 
Right   and   wrong,    19 
Right,  legal,  27 
Right  to  contract,  87 
Rights: 

constitutional,  87 

in  courtesy,  27 

in  personam,  27 

in  rem,   27 

in  trust,  27 

vested,  73 

Rules  of  evidence,  33 
Rupture  of  hymen,  in  rape,  244 


Salpingectomy,   270 

Satisfaction,   180 

Schools  of  medicine,  166 

Schools,  public,  vaccination,  273 

Sensibility,    211 

Services   during  life  of  patient,   97 

Services,   free,   146 

Shock,   232 

Skill,    132 

agreement  excusing,  143 

ailment   treated,    137 

average,    135 

best,   135 

burden  of   proof,    160 

competent  considered,   136 

definition,   134 

degree,  134 


INDEX.  299 


disease  treated,   137 

educated  physicians,  135 

established  mode,    145 

experimentation,    145 

failure  to  cure,   142 

generality  of  requirement,   133 

gratuitous  services,  146 

highest,    135 

implied,    132 

injurious  results,    142 

liability,    133 

locality,  136 

non-professional,    146 

obligations,    132 

ordinary,    135 

presumption,    142 

proofs,  137,  142 

progress,    144 

public  policy,    132 

reasonable,  134 

relative  term,   134 

results,  142 

special  agreement,  144 

special  claims,  144 

specialists,   144 

test,    134 

time,  136,  138 

unlicensed  practitioner,  147 

usual,    135 

volunteer,    146 

when,  138 
Slander,  262.  275 
Soliciting  patients,    65 
Somnambulism,  221 
Sound  mind  and  memory,  228 
Special  agreement,  96,   144 
Specialists,  144 
Specific  performance,  267 
Specified  services,   254 
Sponge  case,   surgical   operation,   129,  255 
Stain,  235 

Standing  of  physician,  98 
Statements : 

adverse,  51,  55 

against  interest,  51,  55 

confidential,  97 

in    presence,   51 

pain,  53 

privileged,    55 

res  gestae,  51,  54 

suffering,   53 

by  physician,  58 

to  physician,  52 
Statutes  of  limitations,  253 
Still  born,   251      • 
Subjective  symptoms,  44 
Subjects  of  medical  testimony,   41 
Substantive  law,  23 
Suffering,  statement  of,  53 
Sunday,  259 


300  INDEX. 

Surgeon,    109 
Surgical    operation,    109 
Survival  of  action,  181 
Symptoms,  44 

objective,  44 

shock,   232 

subjective,  44 


Temperament,   as  affecting  malpractice,   154 
Testimony,   32,  41,   209 
Testimony,  subjects  of  medical,  41 
Tests: 

blood,   238 

care,    139 

judgment,  140 

skill,    134 

Torts   of  insane   persons,   229 
Tort  feasors,  179 
Treatment,  one  mode,   145 
Tremens,  221,  226 
Trial,  30 

jury,  31 

ordeal,  30 

witches,  41 
Trust,  194,   195 

U 

Unauthorized   operation,    111,    119 
Unchastity,  in  rape  cases,  243 
Unconscious  patient,   91,   115 

fee   for   services,   91 

operation,  115 
Unlicensed  physician: 

compensation,  100 

malpractice,  147 

qualification,   69 

Unreasonable  requirements  for  license,  68 
Unusual  punishment,   269 
Usual  results,  not  sufficient,  163 


Vaccination,  272 

Validity  of  contracts,  87,   143,  266 

Value  of  services,   94,   98 

Vasectomy,   269 

Vendors  of  medicines,  66 

Vested  rights,  73 

Violence,   in  rape,   243 

Visits,   frequency   of,   97 

Volunteer,  146 


W 


Waiver  of  privilege,  59 
White   corpuscles,    234 
Will,  a  mental  faculty,  212 


INDEX.  301 


Wills,    227 
Witches,  41 
Witness,  32 
Witness    fees,   105 
Work  on  Sunday,  259 
Wounds,  231 
Written  contract,  83 
Wrong,    19 

Wrong,  continuing,  257 
Wrong  diagnosis,  160 


X-ray  cases,  129,  163,  167 
X-ray   in   diagnosis,    164 


l  -QJ 


